This problem typically occurs at a time when communication between the parties is either about to break down or has already collapsed. Lack of communication can lead the parties to misinterpret each other's motives or actions, resulting in an escalating spiral of retaliatory behavior, which in turn will only generate litigation.
We suggest that the ex-wife attempt to meet with a mediator, who can help you focus on what is best for you and the children in order to get on with your lives. True financial problems, resulting from supporting two households, may be contributing to this dispute. Or it may be that the parties are trying to push each other's buttons.
In Nirenstein Garnice PLLC's role as either an attorney or mediator, we strongly recommend, for a variety of reasons, that this woman not withhold visitation. First and foremost, it would be contrary to the children's best interests. Children need the stability of ongoing, predictable contact with both parents, especially at this stage when their lives are in a state of flux. It is crucial that the children not be exposed to open hostility between their parents or used as pawns.
Secondly, it is not in this woman's own interest to withhold visitation. Certainly in Arizona, a court or custody evaluator will not look kindly on a parent who, especially for financial reasons, violated a pendente lite (a temporary, pending the litigation) order, agreement, or the status quo concerning visitation. If she violates a visitation order, she may be guilty of interfering with custody, an act that can carry substantial criminal penalties. Further, escalation is a dangerous game, not only due to the uncertain judicial response, but also to the unpredictable spousal reaction. The spouse may "counter-punch" by seeking custody or assuming an intractable position on other issues important to her. And, the more litigation escalates, the less money there will be for the parties and their children after the divorce is over and the attorneys are paid.
We would advise this woman to deal with her husband in a very straightforward manner by approaching him directly to rectify the problem. If he refuses to go to a mediator, she would be better off taking him to court to enforce his support obligation than interfering with his visitation.
If Nirenstein Garnice PLLC represented the father, or if Nirenstein Garnice PLLC could confer with the parties as his mediator, we would suggest to him that it is not in his self-interest to use non-payment of child support as leverage. Not only does his wife have remedies through litigation, but in Arizona, he might be compelled to pay her attorney's fees (as well as his own) for enforcing his obligation. Further, the more polarized they become, the more she will oppose whatever he seeks out of the divorce settlement, even terms she might otherwise agree to, in retaliation and for whatever leverage it gives her. Nonpayment of his support obligation may lead to the judge developing a negative opinion of him.
We also encourage him to recognize that his failure to fulfill his child support obligations -- which might be subject to modification -- is not the way to express his dissatisfaction with the arrangements.