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Back Child Support

The father of my child has never paid child support. Is it possible to be awarded back child support for the years that he did not pay?

The answer to this question has changed over the years, but the law has settled down recently on this issue.

In Smith v. Carter, 699 S.E.2d 796 (Ga. App. 2010), the trial court ordered the father in a paternity case to pay 100% of the child’s expenses going back to the date of birth.

This result seemed a bit unfair in that one would think that the mother should also have some responsibility for expenses. In this case, even more so.  The mother made more than twice the income of the father, and the father had married and adopted five children that he supported. Regardless, the judge at trial in this case said the responsibility for these back expenses is 100% the father’s responsibility. 

The Georgia Appellate Court sent the case back to the trial court with the following instructions:

(1) Back support to the date of birth, and even birthing medical expenses before then, are recoverable in a paternity or legitimation lawsuit in the State of Georgia;

(2) The total amount of expenses that can be awarded is limited to the actual expenses incurred by the mother for the expenses of the child;

(3) But the trial court must also consider the child support guidelines when allocating back expenses regarding the proportion of these expenses that should be awarded.

So, in gist, for a topic that has been very confusing (and is still confusing to many, and thus why it can still be argued in many ways) the court clarified the way the law is supposed to work:

(A) Back child support is limited to the actual expenses incurred and paid by the mother back to the date of birth (and medical expenses before then).

(B) The amount of back child support is not determined by applying a child support amount under the child support guidelines (i.e., you don’t determine what the child support award would be if child support had been set back then). However, child support guidelines should be used to determine what proportion of the allowed back expenses should be awarded to the mother against the father.

And therein lies the formula to determine what back expenses and child support a mother in a paternity or legitimation suit may be entitled to from the father, and the limit to the obligation that the father may be liable for in regard to back child support.

In a paternity or legitimation lawsuit, this is one of multiple issues to be decided. Other issues generally include ongoing child support, award of attorney’s fees, and child custody and parenting time.  Fathers can and do win primary custody of their children even in legitimation and paternity cases.  As such, none of the issues in such cases should be taken for granted.

Scott Shaw is founder and principal of Shaw Law Firm PC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm has offices in Dunwoody/Sandy Springs and serves the greater Metro Atlanta area, particularly the counties of Fulton, DeKalb, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today or call us at 770-594-8309.