Is Back-Paid or Retroactive Child Support Possible in Georgia?
Can I get back child support in a paternity or legitimation case when unmarried? Do I have to pay back child support or retroactive support?
In the State of Georgia, the answer to this question has varied over the years. As recently as the 1990 case of Weaver v. Chester the principle was established that you could not get back-paid ‘child support’ as such, based on what one would have paid in child support had it been established then.
Instead, you could be awarded the expenses you incurred for birthing medical expenses for oneself and for the child, and ‘necessities’ such as childcare, nannies, clothing, diapers, schooling, healthcare, toys, cribs or furniture, car seats, and perhaps even an automobile if purchased because of the child.
It is up to the mother to prove these expenses. Then, under Weaver, the court can award some or all of these back expenses to the mother, along with child support going forward, based upon income. This could add up to a lot of money, and sometimes fathers who made much less money than the mothers would end up with 100% of this expense. Awards in six figures were sometimes made.
Now, the principles in that case still exist, but they have been modified and require a court to consider the child support guidelines.
You still cannot get retroactive child support. Back necessity expenses can still be awarded. But now, as recently clarified by the Court of Appeals of Georgia, in Ross v. Small, 844 S.E.2d 535 (2020), the court should apply the pro rata income of the parties to the percentage of back expenses to be awarded.
So, if the dad makes 52% of the income and mom 48%, then dad should presumably pay 52% of the back expenses instead of 100%. The court can make an award for more or less than this, but must make special findings of fact in order to do so.
This, of course, assumes that the mother wins custody here, which is not always the case, and child support going forward is based upon income in the usual manner.
Either under Weaver or under Ross, the amount that can be awarded for back or retroactive necessities is based on the amount that can be proven to have been incurred, and not more than this.
It is also possible that a back award can exceed what an actual back award of child support would have been. Whether or not a court can make such an award is still an open question, and something that can be argued.
In any event, it pays to find an attorney firm that is familiar with this type of law, of your evidentiary burden in court, and what and how to argue these. Issues such as this can be life changing, like so much in family law. It pays to consult an expert in the field.
Shaw Law Firm PC, founded in 1995, is 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.