Retroactive Child Support

If child support has not been ordered to be paid, is it possible that you can go back and collect child support that should have been paid, even if no order was in place?  That’s a question that troubles both custodial parents and potential obligors in Texas.

If you are seeking retroactive child support, the court must:

1.) Determine whether it should order retroactive child support;

2.) Calculate the time period for which retroactive child support should be awarded;

3.) Determine the obligor’s net resources for each year that retroactive child support will be awarded;

4.) Apply the child-support guidelines to the obligor’s net resources to determine the amount of child support that should have been paid; and

5.) Consider any factors that might justify deviating from the guidelines and adjust the support as appropriate.

If a party pleads for retroactive child support, the court must determine whether to award retroactive child support.  There are some basic findings that the court must initially make before the court gets the authority to consider whether to award retroactive child support.  These findings depend upon whether the obligor has previously been ordered to pay child support for the child(ren).

If the obligor was never previously ordered to pay child support, the court can order retroactive child support.  If the obligor has been previously ordered to pay support for the child(ren), the court can order the obligor to pay child support if (1.) the earlier child support order terminated as a result of the marriage or remarriage of the child’s parents, (2.) the child’s parents then separated after the marriage or remarriage, and (3.) a new child support order is sought after the parents have once again separated.

Although the court can order retroactive child support, it is not required to do so.  For example, in the past some courts have held that no retroactive child support is owed if there is some evidence that the obligor voluntarily paid some support in the past, even if that amount was limited or less than any amount that would have been due under the child support guidelines.

Calculating the Time Period for Retroactive Support

If the court decides to retroactive child support, it must determine the relevant time period – in the past – for which child support should be considered.  Under the Family Code, a court order that limits the amount of retroactive child support to the cumulative total that would have been due during the four (4) years before the suit was filed is presumed to be reasonable and in the child’s best interests.

Most courts hold that before a court can award more or less than four (4) years of retroactive child support, the presumption that the amount is reasonable and in the child’s best interest must be rebutted.  There are cases where a court has awarded retroactive child support back to the child’s birth (in one case, it covered the preceding thirteen [13] years of the child’s life!), but this is very fact-specific and that outcome will not happen in every case.  (In re B.R., 327 S.W.3d 208, Tex. App. – San Antonio, 2010)

If the obligor was subject to an earlier child support order, the court can order retroactive child support back to the date that the parents separated after marriage or re-marriage.  If the obligor knew or should have known that he was the father of the child for whom child support is sought and he attempted to avoid the establishment of a child support obligation to the child, the court can order retroactive child support back to the date the respondent knew of his obligation.  (Tex. Fam. Code §154.131(d).)

Determining the Obligor’s Net Resources

Once the court has determined the relevant time period for retroactive child support, it must consider the obligor’s net resources during that time period.   In calculating net resources, the court can use averaging if the evidence of the obligor’s income during the applicable time period is imprecise.

To determine the correct amount of retroactive child support, the court should apply the applicable child support guidelines.  (The proper way to determine child support is more fully discussed in another article on this website.  Also, there is a child support calculator link on the website, to help you calculate the correct amount of child support.)

The amount of retroactive child support calculated under the child-support guidelines can be adjusted either upward or downward, depending on several factors.  Those factors include:

1.) The age & needs of the child;

2.) The child’s educational expenses beyond secondary school (“high school”);

3.) Provisions for health insurance and payment of uninsured medical expenses;

4.) Extraordinary educational, health-care, or other expenses of the parties or the child;

5.) Any resources available for the child’s support;

6.) Whether either party has managing conservatorship or possession of another child;

7.) Each party’s period of possession of and access to the child;

8.) Travel costs for exercising possession of and access to the child;

9.) Child-care expenses that allow either party to maintain gainful employment;

10.) Each parent’s respective ability to contribute to the child’s support;

11.) The custodial parent’s net resources, including their earning potential if intentionally unemployed or underemployed, and any deemed income of the custodial parent.

12.) Spousal maintenance paid or received by either party;

13.) Whether either party has a car, housing, or other benefits provided by an employer, another person, or a business entity;

14.) Paycheck deductions, other than those already factored into calculating monthly net resources;

15.) Cash flow from any real and personal property, including businesses or investments;

16.) Debts assumed by each of the parents;

17.) Any other reason consistent with the child’s best interest, taking into consideration the parents’ circumstances.

In determining whether to deviate from the child-support guidelines in a suit for retroactive child support, the court must consider the following nonexclusive factors:

1.) Whether the child’s mother made any previous attempts to notify the father of his paternity or probable paternity;

2.) Whether the father had knowledge of his paternity or probably paternity;

3.) Whether the order of retroactive child support will impose an undue financial hardship on the obligor or on the obligor’s family; and

4.) Whether the obligor has provided any actual support or other necessaries before the filing of the suit.

Trial of a Retroactive Child Support Case

There are a number of potential witnesses in a child-support lawsuit.  Testimony is governed by the same rules of evidences as in general civil lawsuits.  The most common witnesses in a retroactive child support case include:

1.) The Petitioner (usually the mother).  The Petitioner can testify at trial about the child’s needs and other issues affecting the Respondent’s duty of support.  The Petitioner can testify about the Respondent’s net monthly income and resources.

2.) The Respondent (usually the father).  The Respondent can testify at trial can testify about issues affecting the Respondent’s duty of support, actual possession of the child for any period of time, lack of information about the child having been born or information about paternity provided by the other spouse, and actual support that has been provided for the child.

3.) The child or children can testify.  A child can testify about his or her own needs.  In one Texas case, an adult child testified about her disability stemming from visual impairment, to get child support awarded past the age of reaching adulthood, as well as retroactive.  (In re J.L.F., No. 04-01-00654-CV (Tex. App. – San Antonio 2002, no pet.)

4.) Expert witnesses can be called to testify.  Expert testimony can be used in a child-support suit, but it is generally not necessary because the managing conservator (the parent who had custody) can provide sufficient information about the child’s needs.

If you have never been ordered to pay child support, or if you have a child whose other parent has never paid child support, don’t think that you are home free or out of luck!  The four-year presumption is available for a retroactive award of child support.  And, if the court makes a determination that it is in the child’s best interest, a retroactive child support award can be made that could extend back until the date that the child was born!  If you are the obligor, it is better to tackle this problem head-on, rather than having this large liability growing and hanging over your head!

If you suspect that you may be the father of a child, get court-ordered paternity testing done!  This is the only way to protect yourself from a large, retroactive award of child support that could saddle you with large debt for the rest of your life.  (You could also lose any professional license and your driver’s license!)  It is better to deal with this up-front so that you do not end up with a judgment that you are unable to pay, with interest!

If you are a mother and you have never received child support from the father of your child or children, know that it is possible to get retroactive child support for some period of time.  Just because you’ve never gone to court to establish paternity does not mean that the father of the child(ren) is off the hook for child support!

This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of Janis Alexander Cross, to answer any specific legal questions you may have.  The law is very “fact-specific” and you need to speak with an attorney who can best advise you, after hearing all of the facts.