In California, every parent is legally required to support their minor children financially to the best of their abilities. This obligation exists from the moment a child is born until they become legal adults, regardless of a parent’s custody arrangement.
It is important to note that this obligation exists even if no court order regarding child support is in place. If a parent fails to provide adequate financial assistance to their children before an order is issued, they may be subject to retroactive child support. Below, we discuss retroactive support, when the court may order it, and how it is calculated.
What is Retroactive Child Support?
Retroactive child support refers to financial assistance accrued before a judge issued a child support order. This is contrasted with prospective support, which refers to financial aid that must be paid to provide for the children in the future. Past-due child support, also known as arrears or “back” support, consists of court-ordered support payments that were not paid according to the court’s schedule. Both retroactive and prospective child support can include additional expenses related to the child, referred to as “add-ons,” and can be mandatory per statute or within the court’s discretion.
In most cases, the court will order one parent to make regular payments to provide for their minor children during a divorce or custody proceeding. These orders are not automatic and must be requested by contacting the local courthouse through the Department of Child Support Services or filing a motion directly with the court.
In some instances, a parent does not request financial assistance until months or years after the custody or divorce proceedings start. In these cases, the requesting parent may request reimbursement for the expenses they incurred supporting the children before the order from the court. For example, one parent may file a petition for divorce or custody, immediately move out of the household, and live separately with the children for six months before they formally request child support through the court. In that case, they are eligible for reimbursement of their child-related expenses incurred from the date they filed the petition to the date the court issued the order.
Is Retroactive Child Support Mandatory or Discretionary?
The court has discretion in whether to award payments retroactively to the date of filing the petition. Family Code section 4009 provides “[a]n original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading.”
In other words, the court does not need to order retroactive support in every case. However, suppose it is determined that one parent cared for the children without sufficient financial assistance. In that case, the court may order the other to make additional payments to compensate for the amount the custodial party spent during that time. A parent should keep in mind that the retroactivity provisions set forth in Family Code section 4009 relate to an original order for child support, meaning the court’s first order pertaining to child support. Any subsequent requests to modify child support are generally only retroactive to the time that a motion is filed.
What Does a Judge Consider When Deciding on Retroactive Orders?
As with any support order, the judge will consider the financial standing of each parent, as well as a number of other factors, including:
- The parties’ respective resources and net disposable income during the period when no order was in place.
- How much time each adult spent with the children – This allows them to determine how much prospective assistance would have been ordered, which may be used as the basis for the retroactive amount.
- How long the custodial parent has gone without an official order – A judge may award retroactive support up to the amount that should have been paid between when the petition was filed and the current date.
- Whether informal payments were made to support the children during the time in question – These informal payments may be subtracted from the total amount ordered.
- The paying party’s current financial circumstances – The total amount of retroactive payments may be reduced to avoid placing an undue financial burden on the paying party.
Discuss Retroactive Child Support with Flicker, Kerin, Kruger & Bissada LLP
Retroactive child support is complex and often subject to negotiation. Parents seeking fair and equitable support orders can contact the expert family law attorneys at Flicker, Kerin, Kruger & Bissada LLP.
