Where parents have previously litigated child custody in a divorce or other domestic relations action, they often return to court asserting claims of the noncustodial parent’s failure to pay child support or the custodial parent’s withholding of visitation. In such cases, a longstanding rule in Georgia limits the trial court’s power to impose remedies which conditionally link those two behaviors. This article explores that rule and a key exception that has circumscribed its application.

For more than fifty years, Georgia law has held that trial courts cannot make noncustodial parents’ visitation rights contingent on payment of child support, or make payment of child support contingent on the custodial parents’ allowance of visitation privileges.(1) Two principles underpinned this rule. First, minor children are entitled to the love and companionship of both parents; and one parent has a natural right of access to a child awarded to the other parent, absent parental unfitness or other exceptional circumstances in the child’s best interest. Second, trial courts already can punish nonpayment of child support and withholding of visitation by contempt, and adding a contingent penalty linking payment of child support and visitation rights would have the effect of permitting a parent to bargain with the rights of a child.(2)

Appellate decisions over the ensuing years have carved out a critical exception to the above rule, holding that costs involved with visitation do not constitute child support.(3) Applying that exception, appellate courts have rejected claims of error in court orders conditioning an out-of-state parent’s visitation rights on the purchase of airline tickets for a child and on the prepayment of the custodial parent’s travel expenses for a child.(4) That exception also apparently buttressed the affirmance of a trial court order denying a mother visitation rights with her children until she underwent and paid for a psychological custody evaluation.(5)

An argument can be made that the exception to the rule defies the rule’s original stated purpose to protect children’s entitlement to the love and companionship of both parents. Rationally, a child will suffer the same loss of love and companionship of a noncustodial parent (and the same resulting psychological and developmental harm) whether the child loses visitation with a noncustodial parent because the parent failed to pay child support or because the parent failed to pay costs associated with or needed for visitation. If the paramount consideration in all child custody determinations is the best interests of the child, then an order which conditions a parent’s visitation rights due to something other than parental unfitness, child abuse, or a monetary issue or other factor which detrimentally impacts the child, logically should be construed as an unlawful contravention of that paramount consideration.

(1) Griffin v. Griffin, 226 Ga. 781, 784(3), 177 S.E. 696 (1970). See also Lewis v. Lewis, 270 Ga 409, 509 S.E.2d 926 (1999); Haase v. Haase, 251 Ga. 691, 692, 309 S.E.2d 367 (1983); and Price v. Dawkins, 242 Ga. 41, 42(2), 247 S.E.2d 844 (1978). (2) Griffin, supra, 226 Ga. at 784(3). (3) See Carlson v. Carlson, 284 Ga. 143-144, 663 S.E.2d 673 (2008); Stewart v. Stewart, Nos. A23A0869, A23A1110 (Ga. Ct. App., September 20, 2023); and Stewart v. Stewart, 245 Ga.App. 20. 21-22(1), 537 S.E.2d 673(2000). (4) Stewart, supra, Nos. A23A0869, A23A1110, at *10-11(2); and Spirnak v. Meadows, 355 Ga.App. 857, 844 S.E.2d 482, 488(2) (2020). (5) Andersen v. Farrington, 291 Ga. 775, 777(3), 731 S.E.2d 351 (2012).

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