Family Law Keyed to Weisbergback
Brief Fact Summary. Mr. Turner appealed the trial court’s denial of his right to visitation based upon his failure to pay his child support obligation.
Synopsis of Rule of Law. The court erred by denying visitation without a determination that Mr. Turner was financially able to support his children but refused to do so.
Facts. Rebecca and Charles Turner were married and had two children before separating in 1984. In 1990, the trial court awarded Ms. Turner custody of the children, granted Mr. Turner visitation rights, and ordered him to pay child support and the children’s medical insurance. The trial court denied Mr. Turner’s post-trial motion to alter or amend the child support award, but granted him additional visitation. In November 1990, Ms. Turner sought to have Mr. Turner held in contempt for being in arrears in his child support. Mr. Turner admitted he was delinquent and requested a reduction because he was financially unable to comply with the order. He paid all child support due through November 1990, and agreed to pay for the children’s medical expenses. In January 1991, the court found Mr. Turner in contempt for failing to pay child support and obtain medical insurance for his children. The court did not act on Mr. Turner’s petition to modify child support because he came to court
with unclean hands. Additionally, the court ordered Mr. Turner to pay monthly expenses to reimburse Ms. Turner for obtaining medical insurance. In May 1991 Ms. Turner filed a second petition to hold Mr. Turner in contempt for inappropriate conduct while he was returning her son from visitation. In December 1993 she filed a third contempt petition alleging Mr. Turner harassed and abused her and the children and was seriously delinquent in child support obligations. After an ex parte hearing, the court ordered Mr. Turner’s arrest and suspended his visitation rights. He responded that he was unable to meet the child support obligations and again requested a reduction. In January 1994 the court found Mr. Turner in criminal contempt for violating orders prohibiting him from harassing and abusing Ms. Turner and the children and in civil contempt for failing to make his child support payments. He was sentenced to jail and the court ordered that his visitation would be summarily suspe
nded if he did not make prompt and timely support payments. The court summarily suspended his visitation prior to his release from jail for failure to pay. Mr. Turner filed another petition in July 1994 requesting modification, in December 1994 the court denied his petition.
Issue. Was the court warranted in suspending Mr. Turner’s visitation rights based on the present facts?
Held. The court erred in suspending Mr. Turner’s visitation rights based on his failure to pay child support without any determination that he was financially able to support his child but refused to do so.
Child custody and visitation decisions are guided by the best interests of the child, and are not intended to be punitive. Ms. Turner argues that the children are adversely affected by Mr. Turner’s failure to support them, and it would be in their best interest to cut off visitation until Mr. Turner does so. This is unsupported by the evidence. Ms. Turner is able to provide for the children such that they do not go without basic necessities.
The courts may deny or condition continuing visitation on the grounds of parental neglect. But denial of visitation is warranted only when the noncustodial parent is financially able to support his child but refuses to do so. The trial court did not conclusively determine that such were the facts in this case, so this determination must be made on remand.