California Case Study:

“My husband has a son that we have not seen since he was 4 not by our choice, his mother told my husband he didn’t need to be in his life right now. They never were married and there was no custody agreement or court order for child support, can she come back now and file for back child support? we tried to find her but we never could.“

Answer:

Assuming, as stated in the question, that there has been no child support order issued by any court in the past on this case, for example as part of a paternity action or otherwise.

(governed by California Family Code Section 4009): “An original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading. If the parent ordered to pay support was not served with the petition, complaint, or other initial pleading within 90 days after filing, and the court finds that the parent was not intentionally evading service, the child support order shall be effective no earlier than the date of service.”

In other words, A child support order may only be retroactive to the date the original paperwork asking for a child support order was filed with the court. Thus, if the mother of the child seeks child support (i.e., asks the court to issue a child support order), she must first file papers with the court to get a hearing in which the judge may issue a child support order. She must also “serve” those papers on the father, notifying him that she is seeking a court order for child support. Father is entitled to “due process,” meaning, he must receive fair notice that mother is seeking a child support order against him, and that if he doesn’t agree to pay voluntarily, that he has the right to a hearing to contest her claims.

If mother served the father within 90 days of filing the appropriate child support papers with the court, then any child support order that the court may issue can only be retroactive to the date of the initial filing of such paperwork with the court. If mother does not “serve” father with the papers within 90 days of filing them with the court (and father wasn’t intentionally evading service), then any child support order can only be retroactive to the date of “service.”

In either case, any child support order could only go back as far as the time those papers were either filed with the court, or served on the husband, if not served within 90 days of filing with the court.

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