No, the obligation to pay child support is separate and apart from your right to have possession of your child.
If your ex-spouse is not abiding by the court’s order, you may bring an enforcement action for his or her failure to allow the court-ordered visitation. Your right to possession of your child is an important right that the judges want to protect. You may enforce a possession order by contempt, which means you can request jail time, community supervision, payment of a fine, and attorney fees. You may also request additional periods of possession to make up for the time you missed with your child.
In the event that your ex-spouse is not abiding by the court order, you still need to attempt to exercise your visitation with your child. For example, if the order states that you pick up your child at your ex-spouse’s residence at 6:00 p.m. on Friday, you need to be at that residence at 6:00 p.m. on Friday in order to claim that your ex-spouse violated the court order on that specific date. For purposes of enforcing the order, if your ex-spouse tells you that he or she is not going to allow visitation on a certain date, you still need to attempt to visit your child, even if you do not ultimately get to have possession, to claim your ex-spouse violated the order on that specific date. This can be frustrating, but you need to take this step to have valid violations to bring to the court for an enforcement action regarding your possession order.
The failure to pay child support is also a serious offense and courts also enforce that obligation by contempt, which could mean jail time for the person who failed to pay the child support, in addition to other remedies such as community supervision, liens on financial accounts and property, license suspensions, judgments, and post-judgment writs of execution. The Obligor who pays child support must timely pay his or her child support as described in the order.
Two wrongs don’t make a right – When you are pursuing an enforcement case, you want to go before the court with “clean hands” – meaning that you have complied with the court’s order and your ex-spouse has not. The judge will look upon you more favorably when you are playing by the rules and your ex-spouse has violated the order.