The legal term for back child support in Texas is “retroactive child support.” There are two situations in which retroactive child support is available: in situations where the obligor (the person who pays the support) has never been ordered to pay support and in situations where they have. This blog will address the former situation.
One thing to keep in mind when addressing retroactive child support issues is that a court does not have to award it. It is purely discretionary and may depend upon the facts in the bigger picture of the case.
According to the statute, the court shall consider the net resources of the obligor during the relevant time period and whether:(1) the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;(2) the obligor had knowledge of his paternity or probable paternity;(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor’s family; and (4) the obligor has provided actual support or other necessaries before the filing of the action.” Tex. Fam. Code 154.131.
Here are some key points about retroactive child support:
How much can be awarded? The answer depends upon the obligor’s net resources during the time period claimed. For more information on calculating child support and net resources, please refer to my blog Net Resources and Child Support.
How many months and years can be awarded? There is a presumption that retroactive child support for the prior four years is reasonable and in the best interest of the child. Support for additional years can be awarded with evidence that the obligor: “(1) knew or should have known that the obligor was the father of the child for whom support is sought; and (2) sought to avoid the establishment of a support obligation to the child.” Tex. Fam. Code 154.131(d).
What if the obligor has been paying, just not under a court order? According the statute, the court must consider evidence of support actually paid. For example, prior support would be paying for medical bills, helping with clothing, food and summer camps or money spent while the child was in possession of the obligor. The presence of some evidence showing prior support paid does not mean the obligor is entitled to a credit. It is up to the court to determine if he or she is entitled to an offset. For example, the Appellate Court in Amarillo upheld a judgment that did not give the obligor a credit for support paid because there were facts to support its finding that the money paid was to further an affair with the child’s mother, not to support the needs of the child.
How long can someone wait to file for retroactive support? Four years after the child’s 18th birthday is the deadline to file a petition seeking retroactive child support. That is a long time to wonder if you could be charged with retroactive support. Theoretically, an argument could be made that 18 years of retroactive support should be awarded if the facts fit the law. There are many judgments that have awarded 18 years of retroactive support and have been upheld on appeal.
Despite the uncertainty of how much retroactive child support, if any, can be awarded, the law is such that its advisable not to rely on its availability and not to trust that just because you have avoided child support thus far, that you can avoid it forever.