Prepaid Child Support
Suppose you prepay your child support. Could there be anything wrong with that. The New Mexico Appellate Court has said yes. In Ingalls v. Ingalls, 888 P.2d 967 (Ct. App. 1994) the Court held that when an individual allegedly prepaid his child support, because he said his ex-spouse asked for the funds to attend school, he violated the Court Order stating he had a monthly obligation. "Husband reduced the child support payments without approval of the trial court and gained judicial approval only retroactively, we reverse and remand with instructions that arrearages must first be paid in full in a manner to be determined by the trial court." The Appellate Court also stated that the Trial Court should consider whether the prepayments should be considered in Husband's future child support obligation. So, the Husband might get credit for prepayments of future amounts owed.
Critical Child Support Lesson From the Ingalls Case
One critical lesson from the Ingalls case is this: "The proper and preferable procedure in this case, for example, would have been for Husband to seek immediate judicial ratification of his prepayment plan and wait for judicial modification of his future child support obligations." Only the Court can modify a Child Support Order. If you do anything other than what the Order says, you are setting yourself up to fail later.
Relationship Between the Payment of Child Support and Visitation
In very rare situations, if the custodial parent keeps the child away from the other parent, it may be a defense to the payment of child support. "However, the overriding policy consideration behind the UPA[Uniform Parentage Act] is ensuring support for children based on the parental responsibility that goes with sexual activity." Salazar v. Roybal, 963 P.2d 543 (Ct. App. 1998). "Father supports his equitable argument by citing [omitted], where the courts have denied the support rights of custodial parents who did not disclose information concerning a child to the other parent. The appellate courts in both of these cases affirmed the lower courts' rulings denying payments of child support arrearages in actions brought by custodial parents who, in extreme circumstances, concealed the child's whereabouts." Ibid.
"We believe the better approach is to follow the rule that denial of visitation is generally not a defense to collection of child support arrearages except in those extreme cases where, for example, the noncustodial parent against whom the arrearages are sought to be enforced can prove the custodial parent concealed his whereabouts and the noncustodial parent made reasonable efforts to locate the custodial parent." Williams v. Williams, 781 P.2d 1170 (Ct. App. 1989).
Almost always there is a disconnect between the payment of child support and visitation. One thing is generally not dependent upon the other. If you are not significantly behind on your child support, you should still have the court enforce your visitation with your children. There is a real problem for the person who is behind on the child support, though. Are they going to bring a court action to enforce visitation when they know the other party is going to allege they are behind on their child support?
If there is a continued violation of the Court’s Orders with respect to child support, at some point they may limit or terminate your visitation in an effort to get you to comply with their Orders. This is fairly unusual as it punishes the child as well as the parent. The child may rightfully wonder where has my parent gone. This can be Court Sanctioned trauma for the child. The Court may, of course, argue that the need for support outweighs that risk.
- Overview
- Page One - Prepaid Child Support and Visitation's Relation to Child Support
- Page Two - Children Suing for Support and Waiver
- Page Three - Acquiescence to Nonpayment and Joint Support Awards
- Page Four - Equitable Defenses and Miscellaneous Defenses