There is a difference between retroactive child support payments and being in arrears of child support payments.
Definition of Retroactive Child Support Payments
When the non-custodial parent has not made his or her payments as ordered, they are considered to be in arrears on their child support payments.
When lawyers and judges talk about retroactive child support payments, they are referring to payments that the non-custodial parent may be obligated to make, but has not been ordered to yet. An example of this type of order is a situation where the Court orders that child support needs to be paid from the date of separation, even though the actual order may not have been signed for several weeks or months. In the case of parents who are not married at the time of the child's birth, the non-custodial parent may be required to pay support from the day the child was born. The non-custodial parent may also be required to contribute toward the mother's pre- or postnatal expenses that were not covered by insurance.
Retroactive child support is not always ordered by the Court, even when the custodial parent requests it. One way to avoid this possibility is to bring the matter before a judge quickly. The longer you wait to get things resolved, the more likely it is that the non-custodial parent will need to pay retroactive support.
Keep Records of Child Support Payments
If you decide to make child support payments before a formal order has been entered, make sure you keep detailed records. You can use canceled checks or buy a receipt book and have the custodial parent sign it every time you provide funds to support the child or children.
Court Ordered Retroactive Child Support
The Court will only make an order for retroactive child support if the custodial parent requests it. This provision is not added on at the discretion of the Court. From the point of the view of the custodial parent, it's a good idea to request back child support anyway. If the non-custodial parent has not previously been ordered to pay child support, the judge may include this provision in the child support order.
Calculating the Amount of Support
In determining how much the non-custodial parent would be required to pay for retroactive child support, the Court will consider the non-custodial parent's income at the time period in question. If he or she was working in a low-paying job at that point and is now earning significantly more, the child support will be based on the lower-paying work, not the current rate of income.
In the case of a man who was not aware that he has fathered a child, the Court will consider that fact when deciding whether to award back child support. The man's current financial situation will be considered and the Court may not order or limit the amount of retroactive child support payments if it would cause financial hardship. The judge will also consider whether the mother had attempted to contact the father previously. Any payments the father made before the lawsuit requesting a child support order will also be considered.
Limits on Back Child Support
Each state sets a limit for how far back a judge can order retroactive child support payments. For example, in Texas the limit is four years. This means that no matter how old the child is, the non-custodial parent will only be responsible for back child support for up to four years.
Under California law, the custodial parent can collect child support for a maximum of three years before the date of the child support application. In that situation, the judge will consider why there was a delay in filing for child support as well as the non-custodial parent's ability to pay.
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