Often, the family lawyers at Futeral & Nelson are asked whether someone trying for child support can get back support. This situation happens in a couple of different ways. One example is where child support was awarded earlier in the child’s life, and then the parent receiving support wants to increase it because they found out the parent paying support is earning more money. Another example is where an unwed mother may call about her 3-year child, and for one reason or another, she has lived without receiving support from the father for the past three years. She now wants to start an ongoing support obligation with the father, but she also wants to collect support for the past three years. Can she do this?
We’ll do our best to answer, but it’s more than a “yes” or “no” answer. In general, the family court judge does have the discretion to award retroactive child support, and, as in all family court cases, the best interest of the children is paramount. However, the entitlement to retroactive child support, or a retroactive increase in child support, depends on the facts of each individual case. The short answer is that we believe it can be ordered in both instances described above, but in most cases, the judge will not order it retroactively.
Modification of Child Support in South Carolina
We first must mention that just about any court order pertaining to a child (custody, visitation, support, or otherwise) can be modified if either parent can show (1) that there has been a “substantial change in circumstances” and (2) that a modification is in the best interest of the child(ren). Section 63-17-310 of the South Carolina Code of Laws states that the family court has the authority to modify child support as the court finds necessary upon a showing of changed circumstances; however, such modification is effective as to any installment accruing prior to filing and service of the action for modification.” Still, our supreme court has ruled that the family courts may award retroactive increases of child support in special circumstances. Below are some South Carolina appellate cases that give some guidance as to how family court judges might treat these situations.
In one case, the mother petitioned for a retroactive increase after learning the father earned $400,000 annually for a number of years, rather than the $48,000 he previously claimed. The South Carolina Supreme Court found that the statute does not bar retroactive child support increases if it would result in serious injustice. In other words, the court did not want to reward the father for misrepresenting his income.
In another case, however, a mother who was paying child support, without agreement or court order, reduced her child support payments after the oldest of two kids turned 18 and graduated from high school. The father sent letters to the mother telling her to go through the attorneys or go to court. The mother ignored the letters, and after 18 months, the father filed a contempt action (also called a Rule to Show Cause). The family court held the mother responsible for the payments that accrued from the time the child turned 18 until the mother finally filed her case for a reduction.
In yet another case, a paying parent continued to make child support payments in the full amount, even the oldest child turned 18, graduated high school, and was technically no longer eligible for support. He later filed a case asking for a retroactive reduction of child support, trying to get back his overpayments. The court found that because his other children benefited during this time, he was not entitled to a retroactive reduction. However, it does appear that if a parent is ordered to pay too much at a temporary hearing after a case is filed, the parent can receive credit for the overpayments.
There is a statute, Section 63-17-2760, that seems to outright prohibit a court from reducing or modifying a child support arrearage if someone gets behind.
Getting Back (Retroactive) Child Support in South Carolina
For a parent who is seeking child support for the first time, the answer is unclear to us under statutory and case law regarding whether a court could award retroactive child support that would have arisen prior to the filing date. We have received mixed opinions from colleagues on whether a court can do this, but even if it is allowable, it seems that it is not very likely that back support would be ordered, unless there were some special circumstances, such as a parent lying about his income or hiding.
We do note that there is a criminal statute, Section 63-5-20, that imposes jail or fines on someone who does not support their children or spouse, but we have never seen this law enforced.
What Happens if You Wait Too Long to Seek Retroactive Child Support in South Carolina?
There is a legal term called “laches” that prevents people from doing things because they wait too long without an excuse for doing so. Laches sometimes can apply in retroactive support situations. In a case where there a parent waits a long time to ask for child support to start or increase, a court becomes more likely to apply laches and not allow retroactive child support or to limit how far the parent can go back. However, if the court-ordered child support in the past and the parent receiving support waits many years to enforce it, a court will NOT apply laches. In other words, the parent who is behind will just get further and further behind. Our appellate courts have expressly ruled that the statutes of limitation, which bar certain civil actions, do not apply in child support cases or in claims for paternity.
Documenting Payment of Child Support
If a parent claims the other has failed to support the child, then the burden of proof will turn on the other parent to show that he or she did support the child. For this reason, giving the custodial parent cash (or items such as diapers) without getting a receipt or acknowledgment via text or email from the other parent exposes the non-custodial parent to risk that the court won’t later acknowledge that support. We’re not saying that a non-custodial parent shouldn’t do things like dropping off diapers, clothes, or toys at the other parent’s house. We’re just emphasizing that if it ever ends up in court, the other parent might not acknowledge what has been done. The non-custodial parent should document it if he or she can.
The short answer is that child support arrears or overpayments can’t be retroactively decreased, but in some circumstances, back child support or increases in child support can be made retroactively. If you would like us to review your particular case, please contact the family law attorneys at Futeral & Nelson.