It is possible that a non-custodial parent who was not initially asked for child support is later ordered by the court to pay a certain amount on the basis of a petition filed by the custodial parent or the Attorney General. This amount thus paid is known as retroactive child support. In the event parents are separated, retroactive child support can be ordered from the date of separation of the parents and if they are not married, then the order can go back to the birth of the child. It is important to note that this order is not automatic and must be requested by the custodial parent or the Attorney General.
The previously occurred events that may form the basis for such retroactive child support order by the court include: non-custodial parent hasn’t been ordered in the past to pay for child support; and was not made a party to a suit that ordered support for the child. Even if the non-custodial parent paid child support in the past, he/she still be ordered to pay retroactive child support provided: earlier ordered child support was terminated due to the marriage or remarriage of the child’s parents; separation of the child’s parents occurred after the marriage or remarriage; and a new child support order is sought after the date of the separation (Texas Family Code § 154.009). In an event The Office of the Attorney General (Title IV-D agency) requests the retroactive child support, an agreement between the parties (i.e. if custodial parent says no to such support) does not restrict or eliminate the retroactive child support requested (Texas Family Code § 154.009 (c)).
While calculating the amount of retroactive child support there are several points that the court takes into consideration like net resources of the non-custodial (obligor) parent at the time for which support is requested and certain facts such as: attempts made by the child’s mother to notify the obligor of his paternity or probable paternity; does obligor already had knowledge of his paternity or probable paternity; whether a retroactive child support order is going to put obligor or his family under undue financial hardship; and any actual support or help provided by the obligor to the custodial parent before the request of retroactive child support was filed with the court (Texas Family Code § 154.131 (b)).
In most cases the amount of such support finalized by the court is not more than what would have been the four-year total of support when counted backwards from the filing date of suit for retroactive support (Texas Family Code § 154.131 (c)). It must be noted here that this four-year total rule is a rebuttable presumption and the retroactive support amount could be more than this provided custodial parent could prove that the obligor: had the knowledge or should have had the knowledge that he is the father of the child in question; and deliberately tried to avoid the establishment of a support obligation towards the child (Texas Family Code § 154.131 (d)).
Please note that this post is for general informational purposes only and shouldn’t be used as legal advise. For any legal advise, you are encouraged to contact our office and speak with one of our Family Law attorneys.
Michael Busby Jr. is a divorce & family law attorney, who practices in Harris and Fort Bend Counties, Texas. He has been in practice for over 14 years and has tried over 300 cases. He is familiar with the policy and procedures of the Harris and Fort Bend County Texas family law courts. Our office is open until 8:30 p.m. on Wednesdays and Saturday from 9 a.m. to 1 p.m. for working folks. Michael Busby Jr. 6100 Corporate Dr Ste 190 Houston, Texas 77036 (713) 974-1151 281-DIVORCE Visit me on the web at www.busby-lee.com