Retroactive Child Support in California

Under Californian law, parents have a legal obligation to financially support their children from the moment they are born until they reach adulthood, which is considered to be 18 (sometimes called the “age of majority”).

This obligation applies regardless of the legal custody arrangement between parents and even if no court order formally supports it.

After separation or divorce, one parent usually pays child support to the other to contribute to the costs of raising the child. Sometimes, a parent is delayed from receiving support before a court order is issued and may be eligible for retroactive child support.

When is retroactive child support applicable, how is this calculated, and is it mandatory in California?

Retroactive child support refers to the requirement for financial assistance accrued before a judge issued a child support order—and is not to be confused with child support arrears.

Say that a judge in California decides that regular child support payments must be made by a parent from January 1st. However, a petition was first filed with the court for support and served on the other parent several months previously.

Under Californian law, as well as the regular monthly payments from January 1st, retroactive child support may be ordered by the judge to cover expenses during the additional period between the filing of the petition with the court and the issuance of the court order.

A parent may be eligible for retroactive child support if there was a delay (usually months but in extreme cases years) in receiving a court order and had to pay all expenses for the child during that period. The retroactive support is designed to reimburse a portion of these expenses by ordering the other parent to contribute for the period in question.

Retroactive child support orders may include standard child support amounts but also “add-on” expenses related to the child in some cases.

It should be noted that child support may be worked out collaboratively between parents and their lawyers or ordered by the court during a divorce or custody proceeding. In the latter case, one parent must apply to the court for a judge to issue an order accordingly—it does not happen automatically. It is advisable, therefore, to seek the assistance of a qualified divorce lawyer as soon as possible after separation.

Child support arrears are past-due child support and refer to unpaid court-ordered support. They can only accrue for periods after child support has officially started—whether ordered by the court or by a legally binding agreement.

The support obligation is mandatory and the failure of the paying parent to make payments to the recipient can result in the action to collect the arrears.

In California, this is different from retroactive child support, which only refers to payments to be made for a period before it was ordered by the court.

Under Family Code section 4009:

“[a]n original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading.”

Courts in California have discretion in whether to award payments to a child support applicant retroactively to the date that the petition was filed. It is not a mandatory requirement in every case and the judge will decide based on several considerations (detailed below).

Generally, if one parent cared for a child without any financial assistance from the other parent for a period before the child support order was issued, judges will likely award retroactive child support for this period.

The main factors considered by Californian courts when adjudicating on retroactive child support cases are:

• The financial standing of each parent (i.e., their respective resources and net disposable income) during the period when no order was in place.
• The parenting arrangement at that time, i.e., how much time each parent spent with the child during that period.
• The length of time between when the petition to the court was filed and an official support order was issued.
• Whether informal payments were made to support the children during the period in question (these may be considered contributions and subtracted from the total amount ordered).
• The payor’s current financial circumstances and whether an undue financial burden may be created by ordering retroactive support.

After considering the above factors, if retractive support is ordered by a California court, the standard Child Support Guidelines will be referred to by judges.

Using these guidelines, the amount of child support that would have been owed during the retroactive period can be calculated. However, rather than applying a straight formula, judges will consider other factors that can adjust the retroactive amount payable.

The judge is likely to consider each parent’s income during the retroactive period rather than the current income unless the current income of the paying parent is significantly lower now and payments would place an undue financial burden on that parent.

The other major factor is whether the noncustodial parent made significant voluntary contributions to supporting the child during the period in question—for instance, for daycare, medical expenses, tuition, or the child’s daily expenses.

If the judge wishes to deviate from the guideline calculation result, the judge must list the reason. Note too that the burden of proof lies with the noncustodial parent when demonstrating any payments made during the retroactive period.

The provisions outlined in the Family Code for retroactive child support relate to an original order for child support, i.e., the court’s first child support order.

If subsequent requests to modify child support are made, the court will not order retroactive child support if it agrees to the modification. Also, the reduced payment amounts are generally only retroactive to the time that a motion is filed—and not before then.

A parent with a significantly reduced income due to the loss of a job or disability and who seeks a modification of child support after waiting some months must still pay the full support amount from the original order. If the amount is subsequently lowered, it can only be backdated to the date on which the modification request was filed with the court.

It is, therefore, essential to act quickly if you suffer a major change of financial circumstances that affects the ability to pay for support.

If you are facing a child support issue, the family attorneys at The Sands Law Group APLC can help. Contact us or call 213-788-4412 today for a free 15-minute phone consultation about your case.