In order to understand retroactive child support payments, you must first understand the purpose behind ordering child support. Child support is simply the amount of money one parent is required by law to pay to the other parent who retains primary custody of the child. The purpose of child support is for the benefit of the child, and is intended to pay for essentials such as: food, shelter, clothing, healthcare, and educational expenses.
Similarly, the purpose of retroactive child support is still for the benefit of the child. However, retroactive child support is different than unpaid child support. Unpaid child support, also known as child support arrearages, occur when a parent misses payments after a judge issues a child support order. In contrast, retroactive child support is ordered to reimburse the primary parent for child-related expenses that were made before there was a child support order or agreement.
Thus, in California, retroactive child support payments are child support payments that are ordered for periods in which the non-custodial parent did not pay any child support. Generally, this period involves the time period before the finalization of the divorce decree and/or child support order.
For example, a common retroactive child support situation occurs as follows: (1) A petition for divorce is filed and served on January 1st; (2) After the divorce petition is filed, a request for child support is made on February 1st; and (3) The court hears the request for child support on March 1st.
In the above example, a California Family Court could make the child support order effective on January 1st, February 1st, or March 1st. This means that the Court may order retroactive child support payments for: (1) the entirety of January and February, (2) the entirety of February, or (3) no retroactive child support and the order and payments begin in March.
In essence, the parent seeking retroactive child support payments must specifically ask for retroactive payments. As of July 2017, a parent seeking retroactive child support must do the following:
- Open a Child Support Case: The parent seeking past child support payments must first open a child support case by completing an application with the local child support enforcement. Importantly, both parents must be able to be located to open a child support case;
- Establish a Court Order: In California, you must complete and file a Form FL-300 with the court clerk to establish a court order to collect past due child support payments. You also have to complete and file an Application to Determine Arrearages (Form FL-490), Declaration of Payment History (Form FL-420), and Payment History Attachment (Form FL-421). You should have an attorney or the court’s family law facilitator review your forms and make 2 copies for your records;
- Serve The Other Parent: Next, you must legally serve (“service of process”) the file stamped documents, which contain the court date for the child support hearing, on the other parent.
- This provides the other parent notice of the hearing and the open child support case. After the other party has been served, you or the person who served the documents must file proof of service with the court; and
- Appear in Court: Finally, a judge will hear the case and determine how much the other parent owes in retroactive child support in addition to the interest charges applied and the regular monthly child support payments owed thenceforth.
As noted above, most cases of court ordered retroactive child support payments are for the short period between the filing of marriage dissolution and the hearing on the child support order. Additionally, California law even allows for retroactive child support to be ordered back to an original petition for divorce, even if the petition was filed in a different state.
Retroactive child support payments are not a requirement in California, but judges do have great leeway to order the support. Retroactive child support payments become required if:
- The non-custodial parent is found to have concealed assets and finances to avoid paying child support payments, or has paid a lower amount due to the concealment;
- It is proven by the custodial parent that the child had unmet needs during the period of time the custodial parent is seeking retroactive child support;
- The non-custodial parent acted in a manner to delay the initial child support hearing, consequently delaying child support payments from being made; or
- The judge concludes based on other circumstances, such as the best interest of the child, that child support payments must be backdated to a period before the non-custodial parent was ordered to pay.
In California, a parent that seeks retroactive child support is limited to seeking out child support payments that could have occurred in the last three years. This is because California has a three-year statute of limitations on retroactive child support orders. Thus, if you are a parent seeking retroactive child support, you should immediately file your petition with the court.
Additionally, retroactive child support will only be granted back to the date when the non-custodial parent was served. Further, if the service of the request for retroactive child support takes longer than 90 days, barring the non-custodial parent deliberately avoiding or delaying service, child support payments will be calculated from the date of service, rather than the date of filing. This potentially means the custodial parent may lose out on needed child support if the service of process is not done correctly.
As can be seen, the issues surrounding child support orders in California may be very complicated. Thus, it may be in your best interests to contact an experienced and well qualified California law attorney, that specializes in child support, to assist you in your claim for retroactive child support payments.
A licensed and experienced California family law attorney assist with understanding if you have a rightful claim to retroactive child support payments, help you file the necessary documents properly, as well as represent you in front of a California Family Court, if necessary.