Does California Allow Retroactive Child Support?

Hossein Berenji, Jul 03, 2020

California courts expect parents to provide for the financial needs of their children. This duty applies even if the parents are divorced or they never were married.

According to California Family Code §3900, parents have an equal duty to support their children. This duty is subject to the child support guidelines and other laws.

In most cases, child support results from a divorce action. However, a parent may petition for support payments even though the parents have never lived together. The status of the parents’ relationship does not impact the duty to support the couple’s child.

Seeking Retroactive Child Support in California

The court may order retroactive child support in some cases. However, a parent cannot seek retroactive child support back to the birth of the child. Retroactive child support payments are limited to the past three years.

Courts order retroactive child support when a final order for support was delayed. Retroactive support may also be ordered if a temporary child support order was not issued at the beginning of the action.

However, the retroactive payments only cover the period between the filing of the petition and the present date. The payments cannot exceed three years.

Service of the petition seeking retroactive support is crucial. If the parent was not served within 90 days after the petition was filed, the retroactive period extends back to the date the parent was served. If the parent deliberately tried to avoid service, the judge may adjust the retroactive period.

Is Retroactive Child Support Based on Current Child Support Guidelines?

Yes, the court uses the child support guidelines to calculate retroactive child support. However, several differences could modify the amount of retroactive child support payments.

The income of both parents during the retroactive period is used to calculate retroactive support payments instead of their current income. Thus, the amount of retroactive support payments may be different from ongoing support payments.

The judge may also consider voluntary payments made by the noncustodial parent toward the child’s support during the retroactive period. For instance, did the noncustodial parent pay daycare expenses for the child or school tuition? Did the parent give the custodial parent money to help pay for the child’s expenses?

Can a Parent Receive Retroactive Child Support Payments for a Modification?

In general, the court does not grant retroactive child support payments when the court modifies current support obligations. If the court changes the amount of child support payments, the new amount for support payments applies to future payments.

The custodial parent does not receive a lump sum payment for the difference between the modified child support payment and past payments. Likewise, the parent paying child support does not receive a credit if the modified support payments are lower than the original child support payments.

How Does the Court Calculate Ongoing Child Support Payments in California?

The court calculates ongoing child support payments after deciding about retroactive support payments. Child support in California is based on uniform statewide guidelines. A specific formula is used to calculate child support in California.

The mandatory statewide formula uses each parent’s income and how much time the parent spends with the child to calculate child support obligations. The formula is designed to ensure that each parent shoulders their fair share of the support. Custody is an important part of the equation. The custodial parent typically receives child support payments from the noncustodial parent.

A judge may also consider several other factors when determining the amount of child support payments. Other factors that could impact the amount of child support include:

  • the number of children the parents share;
  • the number of children the parents have with other individuals;
  • any expenses related to special needs;
  • health insurance premiums and health care costs for the child;
  • daycare or childcare expenses; and,
  • the earning capacity of each parent.

If the ongoing child support payments deviate from the child support guidelines, the judge must include an explanation of how he calculated the payments and the reasons for deviating from the guidelines.

Can the Parents Agree on Another Amount for Support Payments?

Parents may agree to pay child support payments that are not based on the California child support guidelines. Some parents may agree to a higher amount of child support because their child has a special interest that results in additional expenses, such as participating in a sport or hobby. Parents may also agree to higher child support payments to help with private school tuition or other needs of the child.

However, child support agreements are subject to review by the court. If the court finds that the agreement is not in the child’s best interest, the court may order a different amount of child support payments.