Articles

The Relationship Between Support and Custody

By Lee A. Schwartz, Attorney at Law

Published: July 17, 2004

It is not uncommon for potential client to call me and say: "Why do I have to pay support, I don't even know where my kid is and I have never seen my kid?" Or, a person will say "Why should I let him see his son, he doesn't even pay support and never has." Are these valid concerns? Do these people have valid points?

The law in Pennsylvania is that there is no connection between ones payment of support and one's right to see one's child. Also, whether of not you visit with your child, or whether or not you have ever seen your child is not a basis not to pay support.

The payment of child support is an absolute obligation in Pennsylvania. If a man is the biological father of a child and the mother has filed for child support, the father and mother must support the child according to their relative abilities.

A Judge cannot condition whether a parent will be able to see his or her child upon the payment or non-payment of support. I once litigated a case where I stepparent wanted to see his stepchild. The judge attempted to condition the partial custody visits, which my client wanted, with my client agreeing to be divorced from the natural mother of the stepchild. The Superior Court of Pennsylvania held that the conditioning of the custodial order upon the agreement to be divorced was illegal. Likewise, the conditioning of custodial visits upon ones agreement to pay child support is simply not legal.

Does that mean that Judges don't consider the non-payment of support in deciding the number of days a father, who doesn't pay, will get with his child? I don't honestly know the answer to that question, but I do know that when a judge finds out that the Petitioning Father in a custody matter doesn't pay support, it is not uncommon to see the judge nod when she or he hears this information and note that information for further use.