Posted by Nydia Streets of Streets Law in Florida Child Support

What happens if after a child support order is entered, a child starts living with the parent who is ordered to pay child support? Child support payments are awarded based in part on who has primary residential custody of the child. In the case Moody v. Moody, 1D17-2477 (Fla. 1st DCA 2018), the court considered an appeal of an order granting a motion for contempt against a father who stopped paying child support for a child who came to live with him. 

The parties in this case entered an agreement obligating the father to pay child support for their three children based on the children residing primarily with the mother. After the agreement was entered, the parties' oldest child began living with the father, at which point the father reduced his child support payments to the mother. The mother then filed a motion for contempt, alleging the father was not paying his full court ordered child support. 

At a hearing, a general magistrate granted the mother's motion for contempt, holding the father reduced the child support without court authorization or agreement, and that his remedy was to file a petition for modification of child support at the time the oldest child began living with him. The father appealed this ruling, arguing it was error for the court to ignore the undisputed fact that the child lived with him and to in essence ignore the fact that the mother was not paying child support for that child. 

The appellate court agreed with the father and reversed the trial court's ruling. It held that although ordinarily, a parent must continue paying support until and unless a petition for modification has been filed, "[A] trial court can decline to enforce a past-due child support obligation [. . .] where the obligor proves an equitable defense, including where the former custodial parent no longer supports the child." The appellate court reasoned the mother was no longer supporting the oldest child who went to live with the father if she was allowed to collect arrears for that child. 

If a child for whom you are ordered to pay child support is living with you, consult with a Miami child support lawyer immediately to determine what you should do to protect yourself against unnecessary support payments. The sooner you act, the better usually, since you may save considerable attorneys' fees and costs if you do not wait until the motion for contempt is filed against you.