A Mostly Absent Parent Who Doesn’t Pay Child Support Can Get Custody

Posted November 15, 2011 in Your Family & The Law by Penny Arevalo

A mother cries out for help at the Lawyers.com legal forums. Her son’s father doesn’t pay child custody and sees his son a handful of times a year. Now he wants custody.

Can he get it?

  • An uphill battle
  • Are there changes in circumstances?
  • Pros and cons of the noncustodial parent


The Short Answer

The short answer is yes, it’s possible, but it’s not going to be easy, say two family law lawyers.


”This is a very uphill battle,” says Sarasota, Fla.-based attorney Liz Alpert of Tannenbaum Scro Hanewich & Alpert. A custody change in Florida requires a substantial change of circumstances, not just the newfound desires of a parent.

Karen Holman of the LawOffice of Karen M. Holman in Cross Junction, Va. agrees. “Particularly in the Commonwealth of Virginia [an altercation in custody] is based upon a determination of whether there has been a material change in circumstances since the entry of the courts last order.”

What Kind of Changes Affect Custody

There are likely good reasons a court gave one parent full custody, Alpert says. One scenario where a judge might be willing to make a change is if a child is in some kind of danger remaining with the custodial parent. (Technically, Florida has done away with the term “custody” and now just refers to “parenting time,” Alpert says.)

”If the parent with custody has become an unfit parent, for instance is an alcoholic or a drug addict, the court is likely to want to give custody to the other parent, assuming the other parent does not have the same or similar issues,” Alpert says.

The length of time to resolve the dispute will vary on the circumstances, Alpert says. ”If the situation is an emergency, such as the child is in immediate danger, a determination could be made, at least temporarily, as quickly as the court is able to schedule an emergency hearing. If there is not an emergency, it could easily take as long as a year,” she says.

Karen M. Holman

Whatever the situation, a judge will make a decision on the best interests of the child, Holman says. In Virginia, best interests is defined by a nine-item list, that includes such items as the age, physical and mental condition of each parent, the relationship between the parents and child and the role the parents have played in the child’s upbringing thus far, as well as the future.

What Would Work For and Against a Noncustodial Parent

Courts are not likely to look kindly on a parent who is delinquent in child-support payments, says Holman, In fact, in Virginia, such a parent can be incarcerated after owing more than $5,000.

However, trying to catch up in child support could “weigh in that parent’s favor, but would not be the determinative factor in whether custody should be changed,” says Alpert.

Penny Arévalo is a freelance writer for Lawyers.com.

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