The Long and Short of It…

The Correlation Between Child Support and Parenting Time – or lack thereof

Visitation rights, now called parenting time in Indiana, are often correlated with child support; however, legally speaking, these are two separate issues that should not be commingled. A custodial parent may not deny the non-custodial parent time with their child(ren) for failure to pay child support, no matter how fair or unfair that may seem. Likewise, a non-custodial parent may not refuse to pay child support when parenting time is denied or not exercised for some reason. Either of these actions can subject the parent to punishment from the court, regardless of the justification for the behavior.

A child has the right to spend time with both parents and the right to receive financial support from both parents (as recognized by the Indiana Parenting Time Guidelines). These rights exclusively belong to the child and can therefore not be contracted away by either parent. It has long been the law in Indiana that a parent may not bargain away the child’s right to financial support. In fact, doing so is a breach of the fiduciary duty owed to the child. A custodial parent is merely a trustee of support funds and thus has a duty to manage or use those funds consistent with the child’s best interest.

It is now also the law in Indiana that a parent cannot agree to forego parenting time in lieu of not paying child support. Just last year, the Indiana Supreme Court, in Perkinson v. Perkinson, issued a ruling that any such agreement is void as contrary to not only the child’s best interest, but also public policy. Although a court cannot force a parent to spend time with their child, it can prohibit a parent from avoiding the child support obligation by disassociating with the child.

If you are facing a divorce with children, remember that the right to spend time with each parent and receive financial support belongs to the child – put their interests first.