Texas Courts may order what is known as ‘retroactive child support.’ This means that in addition to requiring a parent to pay child support going forward, a parent may be ordered to pay back child support for previous times when that parent was not helping to support the child. In order for a court to order retroactive child support, the court must first find that no previous order regarding child support was in place, or that the previous order in place was terminated prior to the time frame for which back child support is requested. If someone is ordered to pay child support and fails to do so, those missed payments are known as arrears, not retroactive child support, and a different process is in place for collecting back payments.
If no child support order is in place, the judge then has discretion to determine whether retroactive child support is in the best interest of the child. It is up to the judge to make a decision based on the specific facts of each individual case, however, judges often consider the type of help and support given by the non-possessory parent when making a decision about retroactive child support. If the court finds that the parent has been providing some form of support, the judge may decide that retroactive child support is unnecessary.
If a judge decides to order retroactive child support, the amount of the retroactive child support payment will be calculated using the same guidelines used to determine child support payments going forward. The Court will look at the net monthly income of the person ordered to pay child support (the obligor) and order the obligor to pay a certain percent of that income every month, depending on the number of children the obligor has and several other factors. The Court will then add up the number of months in which child support should have been paid to determine a total amount of retroactive child support.
There is a presumption that the Court can only look back 4 years when determining the total amount of child support, however, that presumption can be rebutted in several ways. The Court can order retroactive child support for a period longer than four years if there is evidence showing that the obligor attempted to avoid the establishment of child support obligation even though the obligor knew (or should have known) that he was the parent.
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