A few months ago, we dealt with an extremely contentious custody case where we represented Joe. Joe and his soon-to-be ex, Mary, were the parents of two children who were 15 and 17. Joe had virtually no custody of his kids and Mary had done everything under the sun to make the children hate their father. Joe could not see the children without Mary’s permission, he could not obtain their school or medical records without asking Mary for copies and he could not have a say in where the children went to church. Joe could not even spend five minutes in a room with his kids because they hated the sight of his face thanks to Mary’s alienation.
So Joe sat down with us and asked the first question that popped into his mind: Because he had no relationship with the children and no custodial time or involvement in their lives, and because they hated him, did he have to keep paying child support? Answer: Yes.
Recently, a three-judge Superior Court panel issued an opinion, written by Judge Susan Peikes Gantman, on a similar scenario in the case of Kimock v. Jones. In Kimock, the Superior Court affirmed that, under Pennsylvania law, a parent will continue to owe child support even where that parent has absolutely no custody of his or her child, never sees the child and only has a slim hope in the future of possible reunification.
In Kimock, Thomas Jones (the father) and Catherine Kimock (the mother) went before the Pennsylvania Superior Court on the father’s appeal of an order entered by the Northampton County Court of Common Pleas, which denied the father’s petition to terminate child support for his daughter.
Essentially, the father was asking the Superior Court to determine if the trial court’s recent custody order (which granted the mother sole physical and legal custody of the child and which severely limited the father’s contact with the child) was equivalent to a termination of the father’s parental rights, such that he should be relieved of his child support obligation.
Unfortunately for the father, he was not working with the best possible set of facts. The parties were married in early 1993, and their child was born one year later. Throughout the marriage, the father was verbally and physically abusive to both the mother and the child, according to the opinion. The parties finally separated in 2004 and the child went to live with the mother. The father had no contact with the child for nearly one year, until he filed a complaint in custody.
The trial court initially entered an order granting the mother primary physical and shared legal custody of the child. The order also required that the father participate with the child in reunification counseling therapy in order to establish a regular custody schedule for the father. During the therapy, the child ignored the father and, at least during one session, the child came with a blanket over her head to avoid the father altogether.
The counseling quickly came to an end and, nearly one year later, the father was ordered to undergo a diagnostic evaluation with a psychologist. The results of the evaluation found that the father was bipolar and that he needed extensive therapy before attempting reunification with the child, according to the opinion. Unfortunately, the father decided to ignore the evaluation’s recommendation, completely denying that he had bipolar disorder, and he further refused to undergo the recommended additional psychotherapy.
Then, for approximately four years, the father fell off the grid and had no contact with his child until September 2009, when he filed a petition to modify custody to compel the previously ordered reunification therapy. The court decided that the father and the child would see separate therapists and those therapists would confer to determine if reunification therapy was in the child’s best interests.
The father’s own therapist found that the child strongly opposed reunification therapy and had threatened to harm herself if the court forced the issue.
The child’s therapists found that the risks of reunifying the father and child outweighed any potential benefits and went on to state that she wasn’t able to identify any benefit to the child in pursuing reunification therapy.
In February 2011, the trial court entered an order that not only dismissed the father’s petition to modify, but also suspended his physical and legal custodial rights. The trial court’s order further restricted the father by stating he was only allowed to contact the child if permitted by the mother and, even then, the mother would be the sole arbiter of what condition would be deemed appropriate to enable the father’s contact. The court also told the father that he could not have access to the child’s medical, dental, religious or school records, and that his only access would be to the records the mother copied and provided to him.
The practical effect of the trial court’s order, at least in the father’s eyes, was to completely shut the father out of his child’s life. The father had no custodial periods with his daughter. He could not check in on her schoolwork or medical issues without receiving copies of the same from the mother. His daughter showed no interest in being part of the father’s life, and the trial court refused to compel the child to engage in continued reunification therapy.
The trial court’s order was issued in February 2011, and, eight days later, the father filed his petition to terminate child support, alleging that the court’s decision effectively terminated his parental rights.
Unsurprisingly, the Superior Court disagreed with the father’s claim.
As a brief aside, the father’s analysis comes across as a bit absurd to a family law attorney. It is axiomatic that child support is for the benefit of the child, not the benefit of the parent, and in almost every family law case, the parent paying support is never happy with the amount the court determines or the fact that he or she is required to pay in the first place. (Apologies to the select group of parents who enjoy cutting a check each month to their exes.)
Just because a parent does not see his or her child very often, or, as in this case, at all, does not mean a parent is excused from the financial responsibility attached to bringing a dependent child into this world. On the other hand, stepping back from the role of a family law attorney, there is something that seems or feels inherently unfair about the concept that a parent can have his or her role completely eradicated from his or her child’s life while still being held financially accountable.
The father in Kimock was correct that when a parent’s rights are terminated (as in an adoption proceeding) and he or she is foreclosed from further involvement in his or her child’s life, the duty for support is also extinguished. That same father was also correct to point out that, in his particular situation, it does seem that his role as a father is over and there appears little hope that it can be saved.
The father in Kimock, however, ignored an essential and important fact – a child’s best interests are placed above a parent’s sense of right and wrong.
As the father found out after the Superior Court handed down its decision, the obligation to support your child does not depend on your custodial rights. The Kimock court cited a plethora of its prior decisions, noting that the amount of time a parent spends with his or her child has absolutely no bearing on that parent’s obligation to provide child support.
The Superior Court further explained that a parent cannot be released from his or her obligation due to the actions of his or her child and that the child cannot waive his or her right to support, even where he or she renounces his or her parent. Obviously the inverse of this analysis is also true; as a parent cannot purposely reduce the time he or she spends with his or her child in order to lower the support obligation.
It was also important to the court’s analysis that the father in Kimock was responsible for the conduct (abuse) that led to his daughter’s estrangement and the court’s decision. To reward a party financially for abusing his or her child would have been wrong on a multitude of levels.
Interestingly, as another brief aside, in Pennsylvania a custodial parent can actually request that the court increase the amount of support owed if the noncustodial parent has less than 30 percent of yearly overnights with the child. The Pennsylvania Rules of Civil Procedure, in particular Pa.R.C.P. 1910.16-4, provide in the explanatory comments that the basic support guidelines assume children spend 30 percent of the time with the parent paying support and that the court should consider an upward deviation in the numbers set by the guidelines where the parent paying child support has little or no contact with the child. It is somewhat ironic that, under Pennsylvania case law, a parent with no contact cannot get out of his or her support obligation but can, instead, be required to pay more money.
Returning to the Kimock court’s findings, the father was, naturally, required to continue paying support. The Superior Court found that the trial court’s order did not totally extinguish the father’s rights as a parent in the same manner as an involuntary termination of parental rights would have.
The Superior Court observed that the court’s order did not specifically preclude the father from possibly reuniting with the child in the future, that he was still permitted contact with the child and access to her records (albeit restricted contact and access), and that the father still had the right to receive notice of and object to adoption proceedings. The court also found that the father’s reliance upon Pennsylvania Rule of Civil Procedure 1910.19, which provides possible relief from the child support obligation upon a showing of “material and substantial change” in circumstances was misguided, and that an extremely restrictive custody order, even one that removed all physical and legal custody, was not a material and substantial change.
The practical upshot of the Kimock ruling is that family law practitioners now have additional reinforcement for their clients that child support is basically impossible to terminate (as it should be).
The case also serves, however, as a valuable reminder that the core focus of a support matter is the best interests of the child. While, at the end of the day, the father in Kimock may feel that he was unfairly treated, that does not really matter. It is ultimately not about what is fair to the parent; it is about what is best for the child. •
Sean P. McCusker is an associate in the family law department at Weber Gallagher Simpson Stapleton Fires & Newby, where he concentrates his practice on the full range of domestic relations matters including support, divorce, custody and equitable distribution.