The Confusing Interrelationship of Visitation and Child Support
Can visitation be curtailed for failure to pay child support? Can child support be suspended for interference with visitation? Surprisingly, in Michigan, the answer to both is "yes." However, the state enforcement statutes, in their enumeration of remedies, does not provide for one as the remedy for the other.
After first determining if t here will be an adverse effect on the children, each Michigan case (except one) makes the rule clear: no visitation, no child support; and no child support, no visitation. Michigan follows the so-called New York/New Jersey rule, which is the minority rule across the country.
The leading case in Michigan is McLaughlin v McLaughlin, supra. There, a divorce decree provided the father with visitation with the minor children during the summers. For three straight summers, mother refused to let father have the children. "On advice of counsel," Defendant stopped support payments.
Defendant father raised the defense of no visitation in a show cause proceeding for contempt for failure to pay child support. The trial court entered an Order modifying the $45 a week Order to $15 per week and cancelled all arrearages. On appeal, the Supreme Court went a step further. It remanded the matter for an immediate order "suspending" child support.
While the remand required a determination whether the suspension of support would adversely affect the children, the suspension Order was to remain in place until Plaintiff mother’s conduct conforms with the Judgment. However, the Court recited the facts that Plaintiff had remarried, was a permanent resident of another state and there had been no complaints of adverse impact for the year support was not made.
The general rule nationwide is that visitation and child support are separate and independent issues and shall be treated separately for enforcement. One is not a defense to the other. As a consequence, most courts will not permit interference with visitation for failure to pay child support, not terminate child support, nor terminate child support if visitation is not permitted. See 16A child Custody Visitation Law and Practice, McCahey, Kaufman (Matthew Bender 1990).
The rationale for separation of visitation and child support issues is that neither are for the benefit of the parents, but are for the benefit of the parents, but are for the benefit of the child. child support is for the material needs and visitation is for physical and emotional needs, and psychological support from the child’s other parent. If the two issues are linked, then it sends a message that visitation is a purchased commodity, child support is a reward for good behavior.
However, Michigan enforcement statutes do not authorize the remedy of termination of support for visitation abuse nor the termination of visitation for failure to pay child support.
The Support and Visitation Enforcement Act, MCL 552.6501 et. seq. sets forth remedies available for enforcement of child support and visitation. Neither provides as a remedy the termination or cancellation of the other.
For failure to pay child support, the enforcing parent or the Friend of the Court can seek to impose the following:
A. lien on the payor’s real or personal property;
B. Civil contempt proceedings;
C. Bench Warrant for failure to appear;
D. On finding of contempt, commitment to the County Jail or other penal or correctional facility.
Similarly, the Act lists the remedies for visitation violations, which are:
A. Make-up visitation;
B. civil contempt proceedings;
C. Petition for modification of existing visitation provisions;
D. Commitment to the County Jail and time.
Arguably, under the rule of construction of "inclusio unius est exclusio alterius" ("inclusion of one is the exclusion of another"), 11 Code 58b, the legislature has articulated the remedies for visitation and child support abuse and one may not be used as a remedy for the failure of the other. Unfortunately, nothing in the legislative notes, however, suggests the statutory remedies were designed to overrule unambiguous case law.
Further, the visitation provision in the Child Custody Act, MCL 722.21 et. seq. states as follows:
"A child shall have a right to visitation with the parent unless it is shown on the record by clear and convincing evidence that it would endanger the child’s physical, mental or emotional health."MCLA 722.27(a).
The requirement of this high standard of proof for this recent enactment suggests a difficult burden to impose termination of visitation for a failure to pay child support.
In summary, case law clearly states that in Michigan, failure to provide for visitation can result in the suspension of child support and cancellation of arrearages, and failure to pay child support can result in visitation termination. Enforcement statutes, however, do not list one as the enumerated remedy for the correction of the other. This confusion is likely to persist until either our legislature speaks or our appellate courts recognize the apparent conflict.