There are certain instances when a child support obligation can be granted for the time in the past when the parents of a child were separated but no child support obligation had been established. In this instance, the court can retroactively order that a parent who did not have actual care, control, and possession of the child pay back child support for the period that the child was with the other parent. The length of time that this obligation can go back can vary, and it can be the difference between thousands of dollars based on the calculation.
Retroactive child support is based on the premise that the parent with past possession of the child needed support for the child, which was not being provided for by the other parent. When this happens, the court has the power to order and assess a judgment for past child support against the parent without possession. This amount is typically based on that parent’s past income during the period when support was not being paid.
The length of time the court can go back when assessing retroactive support is four years, but this period of time can be longer if the parent with possession can establish that the non-paying parent knew or should have known the child was theirs but attempted to avoid the establishment of a child support obligation in the past. If the parent seeking past-due support successfully shows these two requirements, then support can be ordered back to the date of the child’s birth.
The paying parent can attempt to mitigate some of the retroactive child support by offering proof that they paid some expenses of the child to the parent with possession in the past. They may also show the hardship that will result in them as a result of the retroactive support award. Finally, they may seek to bargain with the other parent on the amount of retroactive support ordered in an attempt to avoid the cost of litigation over the issue.
If you are possibly going to be held responsible for the retroactive support of a child, you will need to determine the amount that could be awarded against you, come up with any defenses to the assessment of that amount of support, and make whatever efforts to limit the length of the support ordered by the court. This is why it is necessary to consult with an experienced attorney who can properly defend against a claim for retroactive child support.