Mary Carollo: How Far Back Can Child Support Go?

As a Child Support Lawyer, I’ve been asked before – How far back can I get child support? It’s a good and a complicated question.

How far back can child support go in Utah?
I didn’t even know about this baby, and now, 10 years later she is going for child support all the way back to birth. Can she do that?
In Utah, is there a certain age where, if you haven’t already applied for child support, you can’t get back support?
Is there a statute of limitations on child support in Utah?

The key to answering all of these questions is PATERNITY. Whether or not paternity has been established is the primary factor in determining how far back child support can go in Utah. The secondary factor in determining how far back child support will go is whether you request child support through the child support enforcement agency or file a Complaint (or Motion) in court.

An action to determine the existence or nonexistence of the father and child relationship (paternity, or parentage) may not be brought later that five years after the child reaches the age of 18. That means that in Utah paternity can be established up until the age of 23.

What does paternity have to do with back (retroactive) child support? In Utah, Paternity MUST be established before a court or a child support enforcement agency can make a child support order. In addition, in Utah, a child support order can ONLY BE retroactive if made in conjunction with a determination of paternity.

Who can file an action to establish paternity in Utah?

The following people can bring an action for paternity:

the child or the child’s personal representative
the child’s mother or her personal representative
a man alleged or alleging himself to be the child’s father or his personal representative
the child support enforcement agency of the county in which the child resides IF the child’s mother, father, or alleged father is a recipient of public assistance or of services under Title IV-D of the “Social Security Act,” 88 Stat. 2351 (1975), 42 U.S.C.A. 651, as amended. Public assistance, as used in this statute, means:
Medicaid
Utah works first
Disability financial assistance

Once paternity is established, how does a court decide whether or not to order retroactive child support?

A court should not order retroactive child support if both of the following apply:

At the time of the initial filing of the paternity or parentage action the child was over three years of age.
Prior to the initial filing of the paternity or parentage action, the alleged father had no knowledge and had no reason to have knowledge of his alleged paternity of the child. (the mother of the child may establish that the alleged father had or should have had knowledge of the paternity of the child by showing, by a preponderance of the evidence, that she performed a reasonable and documented effort to contact and notify the alleged father)

Establishing Paternity as an Adult in Utah

The issue of filing a paternity action in order to seek child support after a child turns 18 is a murky issue in Utah, and the nuances of this issue are still being determined by Utah courts.

On the one hand, there is a situation where a father, an adult child (any age), and the adult child’s mother all file a joint declaration in probate court alleging that the man is the child’s father and requesting that the probate court issue an order declaring the man to be the adult child’s father. In that situation, the declaration must state

that the adult child’s birth certificate does not designate anyone as the adult child’s father (copy of the birth certificate must be attached);
the request for the order is made freely and voluntarily by all parties appearing before the court; and
genetic test results show the man is the adult child’s father. (A copy of the DNA test results must be attached)

If the mother is deceased, or has been adjudicated to be incompetent, the alleged father and the adult child can file an action together, without the mother. The primary purpose for this type of action would be to formalize the father-child relationship and to establish rights of inheritance. When an action is brought this way, the adult child and the adult child’s mother shall not be awarded child support from the man for the time the adult child was a minor.

Also, a paternity action can be brought by the mother, father, child or CSEA Agency until the child’s 23rd birthday (five years after the child turns 18). Sounds simple enough right? Wrong. The tricky part is, that according to one Supreme Court in Carnes v. Kemp, if you are seeking child support after the child has turned 18, apparently that can only be done when the adult child files to establish paternity AND seek child support.

The issue presented to the Utah Supreme Court in Carnes was “Does a court have subject-matter jurisdiction to award retroactive child support payments in a paternity action initiated after the child has reached the age of majority?” The Supreme Court of Utah answered the question with a YES. The Court stated that a juvenile court has the authority to make a support order once a parentage determination is made, and that this means that it may extend the length of time in which to bring a parentage action. This means that an adult, emancipated child can seek retroactive child support until his or her 23rd birthday. If granted, the time period for retroactive child support could be from birth through age 18.

Okay, so, if you read the Carnes case, plus Utah law, you’d think that, since a mother can file an action for paternity until a child is age 23, that a mother would also be able to file for retroactive child support until the child turns 23, just like the adult child did in Carnes, right? Maybe and maybe not. In another case, the mother of J.V., filed for an action for retroactive child support. The court of appeals said that because the child was over 18 the court lacked subject matter jurisdiction to award child support to the mother. The court noted that unlike the Carnes v. Kemp case, no action for paternity had been filed, but said that even if the mother HAD filed an action for paternity, the Carnes case only held that an adult emancipated child could establish paternity and get 18 years back support after reaching the age of 18. The Court of Appeals in In re J.V. said that the Carnes case did NOT say that a mother had a right to file a claim for retroactive child support after the child turns 18, only that an adult child has the right. This interpretation of Carnes may not be completely consistent with the Supreme Court’s holding in Carnes, and it is very likely that there will be more decisions addressing this issue in the next few years.