DuPage County Divorce Lawyer Blog
Here’s a fact pattern that occurs with some frequency in parentage court. To make this blog post more easily readable, we’ll assume that the mother is seeking child support from the father. Of course, that’s not always the case, but it is certainly the more common scenario.
- An unmarried couple has a child together, then lives in separate residences.
- At the time of separation, neither parent goes to court to set up any formal parenting time arrangement or child support obligation.
- The child primarily resides with the mother, and sees the father on an as-agreed basis.
- The father provides some financial support to the mother, and occasionally buys things for the child.
- Years go by, often with little to no conflict whatsoever.
- The mother, either on her own or through the State, files for child support.
- As part of the child support case, the mother requests child support going all the way back to the date of the child’s birth.
Is the father obligated to pay child support all the way back from the time that the child was born? What about the contributions and support he has already paid in the past, which were not required by any court order? Do they count for anything?
In Illinois there are potentially two primary applicable laws that control retroactive child support, the Parentage Act of 2015 and the Illinois Marriage and Dissolution of Marriage Act.
According to the Parentage Act of 2015, the court may order child support payments to be made for a period prior to the filing of the case. Courts have interpreted this to mean that parents are allowed to seek child support from the date the child is born, with consideration given to a number of different factors. After consideration of those factors, the judge has discretion to make an award for retroactive child support. Carnes v. Dressen.
The law and public policy in Illinois state that both parents have a financial duty to support their children. If the law did not permit the courts to award retroactive child support, a parent could avoid an obligation to pay support by stalling and delaying. By granting the courts the power to award retroactive child support, the legislature intended to avoid creating an incentive for delay.
In determining whether and to what extent retroactive child support payments should be ordered, the court will consider all relevant factors. In our hypothetical scenario, those factors would include:
(1) The statutory child support guidelines, which are used to calculate the current monthly amount of child support based upon each parent’s income.
(2) The father’s prior knowledge of the fact and circumstances of the child’s birth.
(3) The father’s prior willingness or refusal to help raise or support the child.
(4) The extent to which the mother or the public agency bringing the action previously informed the father of the child’s needs or attempted to seek or require the father’s help in raising or supporting the child.
(5) The mother’s reasons for not filing for child support case earlier.
(6) The extent to which the father would be prejudiced by the mother’s delay in filing for child support.
In Janssen v. Turner, the Appellate Court examined an award of retroactive child support. In that case, the child of two unwed parents was two years old when the mother filed an action to establish child support. After three years of litigation, the trial court ultimately awarded the mother $62,645 in retroactive child support. That amount was calculated at a rate of $1,500 per month, back to the date of the child’s birth five-and-a-half years earlier, minus a credit for $36,910 in payments made by the father throughout the pendency of the case.
On appeal, the Father challenged the award by claiming it was a windfall to the mother in the nature of a property settlement that she might have received had the parties been married was dismissed by the appellate court. The appellate court not only relied on the discretion afforded to the trial court, in general, and the legislatures intent, but also father’s credibility and forthrightness in disclosing his income. According to the Appellate Court, the father’s financial affidavit was deemed “untrustworthy,” and as a result his credibility was called into question.
In sum, cases involving retroactive child support require a fact-intensive analysis. Hiring the right attorney to gather the relevant evidence and present the facts in a coherent and persuasive manner is often the difference between success and failure. To obtain a better understanding of how the law would apply to the facts of your case, please feel free to contact us for a consultation.