|If My Ex-Spouse Denies Me My Visitation Rights, Can I Stop Paying Child Support?||
Last updated: October 2007
Note:The Illinois Marriage and Dissolution Act and Paternity Act changed on January 1, 2016. The most up-to-date information can be found in the following articles: Parentage (formerly Paternity), Divorce, Allocation of Parental Responsibilities (formerly Custody), Parenting Time (formerly Visitation), and Child Support.
The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.
I’m required to pay child support to my ex-wife, for our two children. The problem is I haven’t had any visitation in months. I keep asking for the visitation set out in our divorce order, but my ex says the kids are busy with school activities. Can I stop paying support if I don’t get any visitation?
No. The law is very clear. Parents must support their kids, period. There are other ways of dealing with the visitation problem besides stopping the child support.
The Illinois Marriage & Dissolution of Marriage Act says that if a parent does not get custody of a child, that parent is entitled to reasonable visitation rights.
The Act doesn’t state as clearly that parents without custody of the children must pay child support, but that’s clearly implied in the scheme of things. For example, the Act refers to a parent having a duty to support the children and generally refers to the parent without custody of the children as the one who should be pursued for support.
So, parents who do not have custody of the children are entitled to visitation, and have to pay child support. The Act makes it clear that those are two completely separate things, and that one can’t be exchanged for the other.
Instead of not paying child support, the Act allows the parent who was denied visitation to ask the court to grant an appropriate order.
Illinois courts have been very clear that support and visitation are separate things.
Just as the parent without custody of the children can’t stop support if they’re not getting visitation, the parent with custody of the children can not stop visitation if they’re not getting support.
And it doesn’t matter if the parents agree to a compromise. Several cases say that agreements that condition support on visitation, or vice versa, are unenforceable. Kids are entitled to support, regardless of what their parents may say or agree to.
The “appropriate order” you could move for would be to enforce the visitation order, by having your ex-wife held in contempt of court. Or, possibly, custody could be transferred to you. You must, however, keep the visitation problem separate from your child support obligation.
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