Case Notes: Custody Restriction and Effect on Support

What happens economically when the court severely restricts custodial rights? Does that lessen the amount of child support to be paid, since the payer is being denied time with the kids? The Superior Court says no.

In Kimock v. Jones, 47 A.3d 850 (Pa. Super. 2012), the court granted sole physical and legal custody to Mother and granted Father visitation only as deemed appropriate by Mother. Child support is generally owed by the non-custodial parent regardless of the time the payer is able to spend with the kids. However, when parental rights are terminated (permanently ended), the continuing support obligation is also terminated. Father contended that because Mother had complete control over if and whether Father could see his child, his limited custody really constituted a termination of his rights. As such, he should not have to pay support.

The Superior Court disagreed with Father. The Court detailed the difference in the intent and effect of a termination of parental rights and a custody Order severely restricting parental rights (as here). For example, custody determinations require a preponderance of the evidence. Termination of parental rights is a creature of legislation and requires a much higher burden of proof: clear and convincing evidence. As such, a severely restrictive custody award is not legally nor practically equivalent to a termination of rights.

Finally, the court reaffirmed that "[t]he obligation to support one's child does not depend on a parent's custodial rights."Id. at 856.

We often get clients who have been given bad advice on their rights and responsibilities. Good counsel is just as important as legal knowledge in helping you navigate a divorce. A good family law attorney knows the "ins and outs" of the system and will give you good advice on when to fight and when to avoid fighting.