It’s one of the most frustrating situations divorced or separated parents face – when the other parent hasn’t paid their child support obligation. If you are the parent covering the bulk of the expenses for your child, it can feel unfair to continue allowing the other parent visitation when they haven’t fulfilled their financial responsibilities. However, before you take matters into your own hands, you will want to understand how Virginia law governs child support and visitation.
At Melone Hatley, P.C., we understand the stress of managing the financial and emotional weight of parenting, especially when the other parent is not fulfilling their legal obligations. Can you deny visitation if they’re behind on child support? The short answer is no, at least not legally. In Virginia, custody and child support are two different obligations, and violating one doesn’t automatically affect the other. But you do have other legal recourse. Let’s take a closer look.
Child Support and Visitation Are Legally Separate
In Virginia, child support and custody arrangements are governed by separate legal principles, even though they are both critical to your child’s well-being. Child support is designed to ensure that your child’s financial needs are met, such as food, clothing, housing, medical care, and education. Visitation, otherwise known as parenting time, is about maintaining your child’s relationship with both parents.
Even when one parent isn’t fulfilling their support obligation, they still retain a legal right to spend time with their child, as long as there is a valid court order in place. The law doesn’t allow a parent to make visitation conditional on support payments. While this can feel incredibly unjust, especially if the financial burden has fallen disproportionately on your shoulders, taking action outside the court system could hurt your position in the long run.
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What Can Happen if You Deny Visitation?
When the court issues a custody and visitation order, both parents are legally required to follow it. If you deny visitation, even for what you believe is a valid reason – such as unpaid child support – you are violating your custody order. And the consequences can be serious.
If visitation is denied, the noncustodial parent has the right to file a motion to enforce the visitation order. Courts take these claims seriously and could order makeup visitation to the noncustodial parent, impose fines, or, in extreme cases, hold you in contempt or even change the custody arrangements. In other words, by trying to “punish” the other parent for not paying support, you could end up hurting your own legal position.
What Can You Do if Support Isn’t Being Paid?
Just because you can’t deny visitation doesn’t mean you have no legal recourse for unpaid support. Virginia law provides several avenues for enforcing child support orders.
- You can file a motion for enforcement: This can be done through the Juvenile & Domestic Relations District Court in your locality.
- Contact the Division of Child Support Enforcement (DCSE): Virginia’s DCSE can help locate the non-paying parent and collect payments through wage garnishment, interception of tax refunds, and even suspend driver’s or professional licenses.
- Request a court hearing: The court can order the payment of arrears, interest, and may even impose penalties or jail time in extreme cases.
In other words, you don’t have to accept non-payment, but you also can’t take matters into your own hands when it comes to visitation. If the financial situation has changed significantly for either parent, it may be worthwhile to seek a modification of the child support order through the court instead of not complying altogether.
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Keep Detailed Records
When your co-parent fails to pay child support as ordered, one of the most powerful tools you have is a clear and organized record of what has and hasn’t been paid. If you need to return to court or involve child support enforcement agencies, the strength of your case will rely on this evidence.
- Payment logs – Create a simple log that records each payment received, including the amount and payment method. If a payment was made late, note that as well. If the other parent paid you directly without going through the state disbursement unit, record this information and consider obtaining written confirmation from them.
- Missed or late payments – Document any payment that was missed entirely or made after the due date. Note any explanations the other parent gave and whether they promised to catch up later. Keeping this log over time will help demonstrate a pattern of behavior.
- Save correspondence and communications – Save all correspondence related to child support, including text messages and emails. If the other parent only verbally discusses payments, consider following up with an email or text to confirm the conversation and summarize what was discussed.
- Bank statements and receipts – If you receive electronic payments, download and store your monthly bank statements. For cash or checks, request a receipt or write one yourself, asking the payer to sign it.
- Third-party witnesses – If payments or discussions about payments occurred in front of a third party, note their presence. They could help verify your account of the story if needed.
Well-kept records not only help prove your case if legal action becomes necessary, but they also show the court that you are organized, credible, and acting in good faith. When emotions are involved, facts backed by solid evidence carry far more weight than accusations.
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Child Support Debt Adds Up
It’s important to recognize that unpaid child support doesn’t simply disappear. It accumulates as child support arrears, and in Virginia, that debt can follow someone for years.
When a parent falls behind on payments, each missed payment is added to the growing total. Even if that parent is unable to pay due to a job loss, illness, or personal hardship, the debt continues to accrue unless they petition the court for a modification and receive a formal change to their support order. Until the court changes the obligation, the full amount accrues, including interest and penalties. Unlike other debt, child support arrears is not easily forgiven, and courts do not typically allow back support to be waived.
What if there is no Formal Visitation Order?
Sometimes, parents operate under an informal arrangement where visitation is based on mutual agreement rather than a formal court order. In these cases, a custodial parent has more flexibility in deciding whether to allow visitation, as there is no enforceable legal obligation.
But this doesn’t mean you are fully protected. The noncustodial parent can petition the court at any time for a formal visitation order, and if granted, that order will likely guarantee their parenting time regardless of whether child support is being paid. Courts won’t necessarily view unpaid support as a valid reason to withhold a child from a parent unless there are concerns over safety or harm.
If you are in this situation, you should consult with a family law attorney about obtaining a formal custody and visitation order. Having a court-ordered arrangement protects both parents and establishes clear expectations and consequences.
Remember to Always Act in the Best Interests of Your Child
As frustrating as it may be to deal with a non-paying parent, it’s critical to keep your child’s well-being at the forefront of all your decisions. Virginia courts are guided by the “best interest of the child” standard, and in most cases, this includes the child maintaining a consistent and meaningful relationship with both parents.
Withholding visitation because of unpaid child support can be emotionally distressing for your child, and this could damage their relationship with the other parent. It’s important to recognize that the child isn’t responsible for your financial conflict with your co-parent and shouldn’t be caught in the middle. Even when the other parent falls short of their expectations, your consistent effort to uphold the legal agreement demonstrates maturity and a focus on your child’s needs, which the court takes into consideration if the case returns to litigation.
Legal Help When You’re Doing This Alone
If you are struggling with unpaid child support or are unsure how to protect your rights without jeopardizing your legal standing, we can help. Our experienced Reston family law attorneys at Melone Hatley, P.C. have helped countless Virginia parents navigate these difficult situations. Whether you need to enforce an existing support order, modify your arrangement, or want to take other measures to protect your child’s best interests, we are here to stand by your side every step of the way. Call us at 703-995-9900 or visit our online contact form to schedule a free consultation with one of our Client Services Coordinators.
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