Frustration of Visitation and Child Support

Argueta v. Baker, 137 A.D.3d 1020, 27 N.Y.S.3d 237 (2016)

There are times where parents do not effectively co-parent. There are even times where one parent goes out of their way to interfere in the parent-child relationship with the other parent. There are ways to enforce the controlling custody order, such as contempt. But New York seems to also have another avenue of relief, asking the court to terminate child support. Note: this is not North Carolina law, it is from New York.

Facts:

In 2009, father and mother entered into a consent order, which provided that the father would pay $123.63 per week in child support to the mother. However, in 2013, mother took the child to Florida without father’s consent. Apparently, mother also refused to disclose the child’s new Florida address, refused visitation when father went to Florida, and refused to tell father when the minor child was back in New York. In 2014, father responded by filing a petition to modify his child support order by either terminating or suspending the child support payments. His main allegation was that mother was interfering with his visitation. The trial court dismissed his petition, and father then appealed.

Did the trial court err in dismissing the petition to modify child support?

Yes.

Discussion:

In New York, interference with visitation can be the basis for suspension of child support. But that is only allowed where the “custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights.” Mother’s actions in this case, the withholding of address, and refusal for any sort of visitation, rose to that level of interference or frustration of visitation. Moreover, evidence was introduced at the hearing that showed mother was no longer incurring child care expenses. These facts alone should have been enough for the trial court to terminate father’s child support obligation.