Can a Noncustodial Parent Stop Paying Child Support & Gain Sole Custody of His Child?

By Heather Frances J.D.

Divorced parents often battle over child custody arrangements and child support payments, but the courts treat these items separately. Both parents must comply with court-ordered obligations to pay child support and to allow parenting time until the court order is formally changed by the court. To obtain sole custody, the noncustodial parent must file a motion with the court to modify the existing custody order.

Sole Custody

Sole custody can refer to either sole legal custody or sole physical custody. Sole legal custody is the right to make important decisions for the child, such as determining where he will go to school and whether he will receive medical treatment. Sole physical custody means one parent is the primary custodian of the child, and the child resides with that parent. Sometimes, the term “sole custody” refers to both sole physical custody and sole legal custody.

Child Support Order

State laws typically determine how child support payments are calculated. Often, the payments are based on each parent’s income, the amount of time each parent spends caring for the child and other costs, such as health insurance and day care. Child support and custody are separate issues, so a parent’s child support amount may not decrease if he spends more time with the child unless the support order itself is changed.

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Enforcing an Order

If you just stop paying court-ordered child support without going through the court first, the custodial parent can take you to court to enforce the order. The court can find you in contempt and can even order jail time as punishment. Prolonged periods of failure to pay child support may result in your driver’s license being revoked or tax returns being seized. If you want to stop paying child support, you must first modify the existing custody and support order. If you are given sole custody, the court will recalculate your child support payment because of the new custody arrangement.

Modifying an Order

To modify an existing court order, you generally must show there has been a substantial change in circumstances since the original order was issued or that a certain time period has passed. The modification must also be in the best interests of the child. The court may also modify the order if new facts have surfaced since your divorce. You can ask the court to modify the order by filing a motion with the court that handled your divorce and serving a copy of your motion on your ex-spouse. If your ex-spouse does not want to modify the custody order, you will have to go to court and present evidence to meet your burden to prove that the change in custody is required.

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Pros & Cons to Gaining Sole Custody in Rhode Island
 

References

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How to File for Sole Custody & Supervised Visitation in New Jersey

In New Jersey, there is a strong presumption in favor of preserving the family unit and ensuring children have ample time with each parent. When time with a parent places a child in danger, however, the courts may grant supervised visitation on a permanent or temporary basis. Cases involving supervised visitation can quickly grow contentious and may involve complex legal issues. A parent who is seeking modification of an existing custody has the burden of proving to the court why a change in the order is necessary.

How Do I Get Custody of My Son if My Ex-Husband Is Going to Jail?

You have a good chance of getting custody of your son if your ex-husband is going to jail. Although courts are ordinarily reluctant to deprive or reduce any parent's custody and visitation rights, a court will usually transfer custody of a child to a child's mother or other biological relative if the child's father is going to jail.

Rights for Fathers Paying Child Support

Child support and child visitation rights are two separate issues. A father has the obligation to support his child and the legal right to spend time with her. The fact that the father is behind on child support payments does not impact his right to child visitation. Child support is paid to the custodial parent, as legal guardian of the child, or to the state, as an interested party in the child's welfare. However, all payments are made on behalf of the child; therefore neither the custodial parent nor the state can waive the payment obligation. State laws govern how much a father needs to pay to take care of his child.

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