Child Support-Retroactive

In the case of the San Diego Naval Commander, he had begun his career in the 80s by attending UCLA as a member of the Naval Reserve Officers' Training Corps (ROTC).

As so many young men attending a university, he had a girlfriend, who in today's term, "Came With Benefits". As he had his career planned out, he was in the habit of using a condom to avoid the potential problems that could affect his future.

They had spoken about having children, but his position was that they were too young at that point to be considering a long term commitment and parenthood. He believed they needed to finish their education and start their careers before any discussion of this type need take place. Besides, who knows where their relationship will be by the time they graduate.

One day he came back to their apartment to find a note and all her belongings gone. She had gone home to her family in Nebraska and did not wish to hear from him as she felt it would be best. He did try, but her family rebuffed any attempts, so he gave up.

He finished his time at UCLA, going on to the Naval Academy, where he met a young woman living in town. After finishing his training there, they got married, and eventually had four boys. Though they had to move around some, as he was transferred to different assignments, they finally settled down in San Diego and bought a house.

Years went by until that fateful day arrived when he tried to cash a check and learned the family checking account, and all other savings, including the college fund they had started for the boys, were frozen. Child Support Enforcement will often take these moves to prevent a father from transferring assets before paternity can be established, and the support order set. After this is done, then the assets are drained to meet the obligation.

He appealed the retroactive order all the way to the California Supreme Court in Sacramento, only to be denied. He was on the hook for 14 years of retroactive child support.

Their liquid assets was not enough to cover the order, so a lien was placed on their home, and a 50% attachment was made on his military income to cover current support, plus a portion going toward the arrears. This left him unable to afford the home, so it was foreclosed on by the bank, ruining his credit. He had to move his family from the four-bedroom house into a two-bedroom apartment on the Naval Base, a major change of circumstance for the family.

With the applied annual interest penalties on the amount still left owing at the end of each year, he calculated it would take him 15-20 years to pay it off completely.

Originally a part of the Child Support Act of 1988, then Commissioner of the Federal Office of Child Support Enforcement, Judge David Grey Ross, oppose the application to cases involving new filings by women who were not married to, or lived with the father of the child. He saw this as an excessive burden to be placed on a man who may or may not have knowledge of the existence of the child. His prediction that this is what would happen quickly became true.

All states permit collecting child support back to the date of the first filing of the motion, and/or to the point when the parents separated. However, the vast majority have statutes that allow for the collection of support for periods predating the filing, in paternity cases, if the parents never lived together.

Often, these cases involved the commonly called, "One-Night-Stand" where a man met a woman in a bar, and after a few drinks together, they have a fling for the night, some times waking up in the morning and wondering who this person is.

What Are the Restrictions on Collecting Retroactive Child Support?
A court is not required to grant retroactive child support at all. In deciding whether to grant such an award, the court will look at several factors, including:

• The past behavior of both parents
• The effect of an award on the parent who has to pay
• Whether the other parent was avoiding paying support
• Why it took so long to file a claim for child support

The court may also limit the amount of the retroactive child support award based on the particular circumstances of your case. However, it should not be expected that this would mean the order would not be put into effect

Does Prior Support Paid Reduce the Amount of Retroactive Child Support?
Once the court decides how far back to make the award, money paid during that time may be subtracted from the final award, however not all states require this. In Illinois, it is subtracted, whereas in Ohio, anything paid without a court order is considered a gift.

Will an Award of Retroactive Child Support Reduce Future Child Support?
Retroactive child support is always granted in addition to regular child support, it cannot be used to reduce future payments.

Up To What Age Can The Father Be Named To Generate An Award?
This is dependent upon state law. Under the Family Support Act of 1988, at the minimum a mother has until the child turns 18 to request paternity to be established, and for child support to be ordered, however states extend this even longer. At the minimum, it is age 19; however, states like Ohio allow it up until age 23.

Can The Child File To Establish Paternity And Obtain Child Support?
Prior to the Age of Majority for an individual state, the child has no "Standing in the Court" to take such an action, only a parent has this power. However, once the child has reached the Age of Majority for their state, they can file up until the limit of state statutes. For states where the Age of Majority is 18, than the child has 1-5 years to file, depending on the state. The one exception to this would be the state of Mississippi. The state limit is age 21, however the Age of Majority in Mississippi is also age 21, thus the child has "No Standing" to take any action.

How Long Of A Period Can Retroactive Awards Cover?
In a few states, retroactive awards of this type are not allowed, period, however that is not the norm. The State of Florida allows awards of up to two years, while Illinois has no specific limit. Ohio is 18 years, while Texas is five years. Overall, five years is the standard for most states. In addition to the award, a "Simple Interest" penalty can be added for each year, ranging from 3% to 18%, also depending on the state.

What Does The State Gain From These Awards?
The states benefit from these types of awards as they are allowed to claim 15% annually in "Federal Matching Funds", under the Federal Child Support Enforcement Act, not all of which is spent on Enforcement. That means in the case of the Navy Commander, the state would received $12,750 in matching funds at the time of the order.

Further, by the time he paid it off, they will have additionally received over $183,000 in Federal Matching Funds, plus over $45,000 in annual interest penalties from the commander, for a total of over $240,000. Nearly one-quarter of an million dollars, and that is for just one case.

In 2010, the children of David Bren, (age 18 & 22) were allowed to sue their father for $134 million dollars in retroactive child support. However this case was a little different in that since 1988 the father had paid the mother $18,000 a month in child support. Unfortunately, he paid it without a court order, so it was considered a gift.

What to do in these cases can get complicate.

1. If married, immediately separate all joint assets held with your wife. One of the earliest moves taken in these cases is to freeze all assets held by the potential obligor, as these can be attached after confirmation of paternity.


2. Put together as detail financial records as possible for the years covered by the order. You will need this to challenge the use of just your current income for setting a retroactive order dating back up to 18 years. (New Child Support Claim)
   
   Consider what that would mean for a man who was a burger flipper, earning minimum wage 18 years ago, and is now a multiple franchise owner making over $1 million a year.


3. Find an attorney that specializes in retroactive child support cases. This is not an issue you want to try to handle on your own. (Choosing A Potential Attorney)


4. If the child is under the age of majority, file for Parental Rights.

Consider filing a lawsuit against the mother for Alienation of Affection in denying you the right to know your child growing up.

Links
Federal Laws on Retroactive Child Support