Parents owe a duty to provide adequate financial support for their children, so they can have basic necessities, such as food, housing, and medical care. This duty is the legal basis for child support payments.
This duty exists until a child reaches the age of 18—at which point the law considers them to be an adult with the capacity of handling their own financial affairs.
When parents are divorced or otherwise separated and unmarried, a child support order is designed to ensure that the child has the same financial resources they would otherwise have if their parents lived together.
In certain situations, child support can apply to cover periods before the support order went into effect. This is known as “retroactive child support.” Courts must assess certain factors in determining whether to grant a retroactive child support order.
Among the factors a family law court will evaluate when determining issues of retroactive spousal support are:
- The income of each parent during the time at issue
- Voluntary payments that were not the result of the court’s order
- The anticipated increase in expenses based on the child’s needs
Typically, a court will grant retroactive child support to cover a period of missed payments.
Initial Child Support Orders
Child support orders can apply retroactively as far back as the date that a divorce petition or support action was filed. Notice of the action must be served on the party from whom child support payments are being demanded.
Additionally, service must be completed within 90 days of filing. Otherwise, a child support order does not retroactively apply earlier than the date that service of process was completed unless the parent was purposefully evading service.
Child Support Modifications
Generally, an existing child support order can be modified upon a showing that a material change in circumstances supports a court in granting the modification. For example, if a custodial parent experienced a sudden increase in income—due to a promotion, inheritance, or a lucky lottery ticket—during a time where the noncustodial parent became unemployed, a retroactive child support order involving reduced payment terms may be available.
However, if a child support order is modified or terminated due to the unemployment of either parent, such an order must be retroactively applied to the later of either the date that notice of the modification proceeding was served on the opposing party or the date of unemployment.
Unlike initial child support orders, the modification or termination of a child support obligation cannot be made to apply retroactively to amounts that accrued prior to the modification or termination proceeding. Furthermore, under California law, a court cannot retroactively reduce child support arrearages that have accrued over several years before initiating the modification proceeding.
Call Moshtael Family Law for Legal Advice and Advocacy
If you are seeking an experienced attorney to help you with a legal matter involving child support, our legal team at Moshtael Family Law can provide the guidance you have been looking for. Our legal team has focused their legal career on matters arising under California law, ranging from divorces to family support obligations.
To schedule an initial consultation about your case, reach out to Moshtael Family Law at (714) 909-2561 or contact us online today.