I recently filed a motion for contempt on my ex for failing to allow court ordered visitation. I also filed a Petition for Modification as this was the 3rd time she was found in contempt for the same issue in 2 1/2 years. The Judge heard both at the same time and ruled that my ex was in contempt but said that the only reason she would not grant the modification because I owe arrears in child support (less than $1000.00). This was in October- I now have to file another contempt for the same issue and would like to file another Modification Petition, but want to make sure that I do not get blindsided again. I know that child support and custody are 2 separate issues but how do I prove it in court. By the way, I met both the change in circumstances and best interest components.
In general, yes they are separate issues. However, Courts do not take kindly to Child Support Obligations that are not being met. Courts will use all sorts of mechanisms to encourage people to fulfill their child support obligations, such as not granting the modification in this case. In the Court's eyes, both of you are disobeying a court order, you by not paying the child support, and the other party for not allowing the visitation.
Child support is a financial obligation, while child custody deals with the welfare of the child in relation to his living arrangements. As such, the two issues are inter-related. Since the totality of the circumstances are involved, you need to present to the court - hopefully through an attorney - an explanation of the circumstances that will support the relief that you are seeking.
It is time for you to sit down with an attorney to discuss your case because clearly the Judge is making decisions based on his assessment of credibility.
This information is a general answer and is not specific to any particular case. If you find this Answer helpful please make sure to indicate that on AVVO.
Based on the way you stated your scenario, you might want to consider an appeal if the time has not run since that order was entered. I do think that if you have not already hired an attorney on this issue, you should.
I am providing this answer solely for informational purposes. This is not to be considered legal advice nor does it create an attorney client relationship.
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