Can Non-Custodial Parents Seek Child Support Arrearages

Each parent has a duty to provide financial support for minor children. After a divorce, the parent with whom the child lives generally is entitled to child support from the other parent. Can a mother get child support where the father wins custody but she won’t give him the child? In Campbell v. Campbell, 617 P.2d 66 (Ariz. Ct. App. 1980) the Arizona Court of Appeals considered the issue.

Case Facts

Mrs. Campbell and Mr. Campbell divorced in Arizona and the court awarded Mr. Campbell custody. Nonetheless, Mrs. Campbell, who lived in California with the child, refused to turn over custody.

Mrs. Campbell then asked for child support under Arizona’s Uniform Reciprocal Enforcement of Support Act (URESA). The trial court refused to award Mrs. Campbell child support because she was in violation of the court custody order. Mrs. Campbell appealed.

Duty to Provide Financial Support to Minor Child

The Court of Appeals stated unequivocally that Mr. Campbell owes his child a duty of financial support. This continues despite Mrs. Campbell’s interference with his right to custody. Mrs. Campbell’s Entitlement to URESA Remedies The Court considered whether Mrs. Campbell should be allowed to use URESA remedies when she did not have legal custody.

The URESA provisions allow a person having legal custody of a minor child to enforce the support obligation. They also authorize a state or political subdivision that has furnished support to the child to enforce the support obligation. Here, the lower court dissolved Mrs. Campbell and Mr. Campbell’s marriage and awarded custody of the child to Mr. Campbell.

Under the language of the statute, Mrs. Campbell cannot invoke URESA remedies to get support for the minor child. In Arizona, the parental duty of support under Arizona’s Family Responsibility Act may be enforced via all civil and criminal remedies. The remedies provided in URESA would generally be included within this broad language. However, the Court ruled that availability of the URESA remedy was subject to the procedural safeguards in URESA.

Mrs. Campbell argues that the Arizona legislature intended to enforce duties of support for children in URESA proceedings without regard to interference with custody rights. The Court said that this may be true for actions brought by a state providing support for the child. It may also be true if a parent having legal custody allegedly interferes with the other’s visitation rights. But interference with custody by a noncustodial parent cannot create a duty of support payable to the interfering parent. Mrs. Campbell isn’t one of the parties who can enforce Mr. Campbell’s obligation under the circumstances of this case.