In Texas, parents often think that if there is no child support order in place, then they have no responsibility to pay child support to the other parent. That is not always true. In certain situations, a court can order a parent to make future child support payments to make up for child support payments that the court believes should have been made in the past when no child support order was in place. This is retroactive child support.
There are two situations in which a court can order a parent to pay retroactive child support. First, if the parent has never been ordered to pay child support for the child and was never a party in a suit in which child support was ordered. Second, if (1) the previous child support order terminated because the child's parents married or remarried, (2) the child's parents then separated after the marriage or remarriage, and (3) a new support order is sought after the separation. The first situation is more common. Often falling into the first situation are unmarried parents who live apart and also married couples who've separated after their child is born.
Under the first situation described above, a parent's responsibility for retroactive child support can start from the child's birth. However, that's not usually the case. Texas law presumes that a retroactive child support order going back four years is reasonable and in the best interests of the child. In order to overcome this presumption, a mother seeking child support will need to prove (1) the father knew or should have known he was the father and (2) the father attempted to avoid the establishment of a child support obligation. Under the second situation described in the above paragraph, a parent's responsibility for retroactive child support can start no earlier than the date of separation after marriage or remarriage.
When calculating the amount of retroactive child support a parent must pay, courts will look at that parent's net resources during the relevant time period. (Terms like "net resources" and "obligor" and how child support is calculated are discussed in our FAQ section.) So, for example, if a parent has been ordered to pay retroactive child support covering the past 3 years, the court will look at that parent's net resources over the past three years. If that parent's financial records don't provide a full picture, then the court usually averages that parent's net resources over that time period.
When calculating the amount of retroactive child support, the court will also consider whether: (1) the mother of the child has made any previous attempts to notify the obligor of his paternity or probable paternity, (2) the obligor had knowledge of his paternity or probable paternity, (3) the retroactive child support order will impose an undue financial hardship on the obligor or the obligor's family, and (4) the obligor has provided actual support or other necessaries before the filing of the action seeking retroactive child support. The fourth factor is very important. Texas law looks very kindly on the parent who provided support for his child even without a child support order in place. As long as a parent can prove the support they've already provided, courts will usually credit that parent for the support already provided when calculating retroactive child support.
A parent has until 4 years after the child turns 18 to seek retroactive child support for the child. Also, retroactive child support is not automatic. A parent must specifically ask the court for retroactive child support.