Understanding one’s duties and rights as they pertain to child support in Texas can be difficult. However, the basis of all support obligations is this: all parents have a duty to provide for their child financially. When a court issues an order requiring a parent to make child support payments, the parent must make those payments in full and on time; otherwise, they are in violation of the law.
Keeping the above in mind, back child support is something that you may be entitled to, or be ordered to pay, as part of your child support case. Consider the following information about back child support in Texas, and be sure to call our experienced family law attorney at the Law Office of Ben Carrasco for information that is specific to your situation.
What is “Back” Child Support?
Back child support is referred to as “retroactive child support” under Texas Family Code, the issue of which is addressed in Section 154.009 of Texas Family Code. Essentially, retroactive child support is back pay for child support that should have been paid to a custodial parent but was not. It may be ordered in addition to, not in place of, a current support obligation.
According to the section of Texas’ code cited above, the court may order a parent to make retroactive child support payments when:
● The parent had not previously been ordered to pay support for the child; and
● The parent was not a party in a suit that resulted in an order of child support.
The law above speaks to a situation in which a parent has never before been asked to pay child support, and is now being asked to make payments for a time in the past. The other situation in which a court may order a parent to make retroactive child support payments is in the event that a parent has been ordered to pay child support and:
● The previous child support order was terminated as a result of remarriage;
● The child’s parents separated after the marriage/remarriage; and
● A new child support order was sought after the date of separation.
In this second case, retroactive child support is ordered to compensate the parent/child for the time between the conclusion of a previous child support order and the beginning of a new one.
How Is Back Child Support in Texas Calculated?
In determining whether or not a custodial parent is entitled to retroactive child support payments, and if so, how much those payments should be, the court will consider a number of factors, outlined in Texas Family Code Section 154.131. These factors include, but are not limited to:
● The net resources of the party from whom support is being asked during the relevant time period;
● Whether or not the mother of the child (custodial parent) made an effort to contact the father and notify him of his paternity;
● Whether or not the father knew of his paternity or probable paternity;
● Whether or not asking the party to make retroactive child support payments will impose undue hardship on the party; and
● Whether or not the father (party from whom support is sought) provided any support to the child otherwise before the action for retroactive child support was filed.
Keep in mind that the court presumes that a back child support order that goes back no further in time than four years is appropriate and is within the best interests of the child. This means that even if more than four years have passed without child support payments, the amount of retroactive child support ordered cannot exceed more than four years’ worth of support.
However, this presumption is refuted by any evidence that the father, from whom support is being sought, knew or should have known that they were the father of the child and tried to avoid making child support payments as such.
Can I Sue My Former Partner for Back Child Support?
Yes! Filing a civil action against your former spouse, partner, or the father of your child asking for retroactive child support is exactly what you should do if you believe that you are entitled to back child support. Again, this type of support is ordered by a court when a father has not been paying child support, either as a result of a court order not being in place, or a lapse between child support orders.
For example, suppose you and your partner are living together and have a child. You decide to separate, but do not head to court to legally make a decision about care for the child. Your child lives with you for two years’ time, and during those two years, you do not hear from the father. In this case, you may be able to petition the court for back child support, as there was never a child support order issued by a court.
How Should I Handle Child Support Going Forward?
It is important to note that back child support is not the same as standard child support. Once a back child support order is enacted by a court, the father may also be liable for present day child support payments as well. If you are a parent who is being asked to make child support payments, have an existing child support order in place, or want to ask the court for child support payments, it is wise to consult with a lawyer. If an order is in place, you must make payments in full and on time to avoid consequence. That being said, you may seek modification of a court order when a significant change in circumstances occurs that warrants a modification.
Our Family Law Attorney Can Help
Understanding retroactive child support payments in Texas can be confusing. If you think that you are entitled to back pay for child support, or if you are being asked to pay retroactive child support that you don’t think you owe, our lawyer can help. Call the Law Office of Ben Carrasco today for a consultation to learn more.