In general, child support refers to the periodic payments that are made from one parent (usually a non-custodial parent) to the other parent (the custodial parent) to help them provide financially for their shared child. The main purpose behind these payments is to ensure that the child is never lacking in essentials, such as food, shelter, healthcare, clothes, and education related costs.
Retroactive child support, however, is a form of child support payments. When requested, it refers to the amount of money owed to the custodial parent for child-related expenses that accrued before a court has issued a formal child support order. This form of support should not be confused with the terms “child support back payments”, or “unpaid child support payments”.
The primary difference between retroactive child support and unpaid child support payments is that retroactive is based on the amount owed prior to the issue of a formal order, and unpaid refers to the amount owed after the court has issued a formal order.
Specifically, in regard to retroactive child support payments in California, the payment is still based on the amount owed before an order was created, but the court will examine a few other factors before making a decision, such as:
- The anticipated costs to raise a child based on their individual needs;
- The income of both parents during the time period that support is being requested for;
- Any voluntary payments that were made prior to a court order; and
- Whether the request falls within the statute of limitations (i.e., three years in California).
Additionally, if you are ordered to make retroactive child support payments, California charges a statutory interest rate of 10% per year.
What Steps Must I Take to Seek Retroactive Child Support?
In order to receive retroactive child support in California, the parent seeking the payments must explicitly make a request for retroactive payments. Other steps the parent must take include:
- Petitioning the court for child support: This involves filling out a petition for retroactive child support payments, which must then be filed in the appropriate local court (usually a family law court). Also, the court must be able to locate both parents in order to move forward with a case.
- Establishing a court order: In California, a party must complete and file a Form FL-300 to establish a court order. This is a necessary step for a parent seeking child support payments. Other forms that must be completed and filed include:
- Application to Determine Arrearages (Form FL-490);
- Declaration of Payment History (Form FL-420); and
- Payment History Attachment (Form FL-421).
- Serving the non-custodial parent: After this is done, the custodial parent must legally serve the non-custodial parent the filed documents (i.e., a copy with a court-stamped approval), which will provide the date of when the child support hearing is being held. This puts the non-custodial parent on notice of the hearing and that a child support case was initiated.
- Once the other parent has been served, the custodial parent must file proof of service with the court.
- Appearing in court: A judge will be assigned the case and will make a decision at the child support hearing. The judge will also determine how much the parent owes in retroactive payments (including any interest), as well as the amount of support owed on a monthly basis.
One final thing that should be noted about California child support laws is that there is a three-year statute of limitations for back child support and retroactive child support payments. Thus, it is very important that a party seeking child support payments file their request as soon as possible.
Are Retroactive Child Support Payments Required?
Retroactive child support payments are not required in the state of California, but judges are given wide discretion to grant a request for support. As such, a party may be required to pay retroactive child support when any of the following circumstances occur:
- If it is discovered that a non-custodial parent has intentionally hid assets or finances to avoid making child support payments, or has concealed them for the purpose of being ordered to pay a lower amount than they would owe if they had not been;
- When a non-custodial parent behaved in a way that led to the initial child support hearing being delayed, which in turn, ended up delaying the child support payments from being made;
- If the court determines that based on other factors, such as the best interest of the child standard, that child support payments should be backdated to a period prior to when the non-custodial parent was ordered to pay; and
- When the custodial parent is able to prove that the child had certain needs that went unmet during the period of time for which the custodial parent is seeking retroactive child support payments.
What are the Restrictions on Collecting Retroactive Child Support in California?
A parent seeking retroactive child support payments in the state of California will be limited to requesting only those payments that could have occurred within the last three years. The reason behind this restriction is based on California law. California has implemented a three year statute of limitations on retroactive child support orders.
Thus, a person who seeks or needs retroactive child support should file a petition with the appropriate court as soon as possible.
In addition, retroactive child support payments will only be granted as far back as the date when the non-custodial parent was served. Moreover, if serving the request for retroactive child support takes longer than 90 days, then the amount of support owed will be calculated from the date of service, rather than the date of filing.
In other words, if service of process is not done correctly, then it could potentially cost a custodial parent in need of child support a significant amount of payment. There is one exception, however, where some service of process repercussions will be ignored and that is when a non-custodial parent deliberately avoids or delays being served.
Therefore, while it is possible to sue for retroactive or back child support in California, a party should be aware of all the potential restrictions.
Do I Need a California Attorney for Help with Retroactive Child Support Payments?
The laws and issues surrounding retroactive child support payments in California can be very tricky to navigate without any legal assistance. As such, if you need help with requesting or modifying retroactive child support payments, then you may want to consider contacting a local California attorney who specializes in child support matters for further guidance.
Your attorney can determine whether you have a supportable claim to receive retroactive child support payments, help you file any necessary legal paperwork to make your case, and will be able to provide representation on your behalf in any court proceedings.