Every day we see custodial parents who are pushed to the brink by unpaid child support obligations. The child support system in South Carolina can be slow, and it certainly is imperfect, so it can seem to a parent struggling because of unpaid support that the system doesn’t work, or even worse, doesn’t care.
These feelings lead often to lead to thoughts of self-help; “if the system can’t make him pay child support maybe I can.” And what is the only “bargaining chip” a custodial parent may have in their relationship with the non-paying parent? Time with the child.
I’m sorry to report, however, that while there are many gray areas in the world of Charleston divorce law, there are no shades with this particular issue. A parent with lawful visitation rights with a child is entitled to exercise those visitation rights regardless of the status of his or her child support account. Simply put, you cannot withhold visitation in an effort to collect child support.
The law in South Carolina is designed to protect the parental relationship between “deadbeat” parent and child because having a relationship with both parents is what is best for the child. While this can be a frustrating fact of life for the custodial parent who is watching his or her child care, medical, and groceries bills pile up, those custodial parents are not without options:
File an Affidavit to Have Support Paid Through the Court
Most divorce decrees, separation agreements, and the like contain a provision that allows the custodial parent to transfer collection duties to the Clerk of Court’s office after a single payment is made five or more days late. This transfer is accomplished by the filing of a relatively straightforward affidavit with the court, without notice to the paying parent. The Clerk will thereafter be tasked with collecting arrearages and ongoing support, meaning that the headache of constant discussion and/or argument about support collection should for the most part disappear.
File a Rule to Show Cause
A Rule to Show Cause is an action in Family Court that asks that Court to hold somebody in contempt. The power to hold a party in contempt is the means by which the Family Court enforces the provisions of the orders it issues. One of the most common reasons a Rule to Show Cause is issued is for failure to pay child support. At the hearing on a child support Rule Show Cause, the complaining party will be tasked with proving the paying parent willfully violated the order by failing to pay support. The defending party will be given a chance to respond, and the most common defense is that he or she did not have the ability to pay support. This defense most commonly arises in situations where some unforeseen catastrophe has afflicting the supporting parent, whether that be involuntary and faultless loss of employment, involuntary and substantial reduction of income, or some sort of debilitating health crisis. If the Court finds the violation of the order was willful, the judge may sentence the offender to some period of incarceration, a fine, and/or community service. The offender can purge the contempt, and the sentence, by full payment of his or her child support arrearage (or some part thereof), together with reimbursement of the attorney’s fees and costs incurred by the custodial parent in bringing the action. If the court finds the violation was not willful, but that the paying parent is behind in his or her obligation, the court may establish some sort of payment plan on the arrearage to bring the offender into compliance with the terms of the child support order.
When the supporting parent is required to make support payment through the Clerk of Court’s office, the clerk will automatically bring a Rule for non-payment on behalf of the custodial parent. The problem with this system is that the sheer volume of cases means that it is unlikely a Rule will be issued more than every several months. Even if the paying parent is paying through the Court, a custodial parent can always retain private counsel to file Rules to Show Cause more frequently.
If the parent paying child support fails to personally appear for a Rule to Show Cause, the Court will generally issue a bench warrant for his or her arrest.
Ask the Court to Amend the Visitation Schedule
It is not uncommon that the failure to pay child support is related to deeper, more troubling problems in the supporting parent’s life. The supporting parent may be struggling with alcohol or drug dependency, chronic unemployment due to a lack of work ethic and/or maturity, or even mental illness. These problems may mean that the child’s best interests would be served by reducing the amount of exposure between child and parent on an ongoing basis.
As with any of the thorny issues that commonly present themselves in Family Court, you should consult with a competent and experienced Charleston divorce lawyer to ascertain your specific rights and obligations before attempting to undertake any of these actions.