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ANB428 · Apr 1, 2009, 12:40 PM

Originally Posted by ScottGem

Hmm, looks like we have a conflict here as to CA law.

As for the OP's situation. Califdad posted a link with Texas rules.

Let me add though, that the phrase "date filed" has been used here. So lets say that the mother filed for support 10 years ago, maybe even granted a default support order because the father couldn't be located. And has been unable to locate the father until just recently. In that case, couldn't support be ruled retroactive to the date of filing?

As an aside to tin190. Please don't start a new thread with a followup question. Use the Answer This Question options to post a reply to the thread. We've merged your posts for you.

I know that this is another question and I should start another thread, but I need a quick answer. I filed for child support against my daughter's father about 4 years ago in California. They have not been able to 'find him' (even though he is in jail right now). Will he have to back track and pay me child support for the past 4 years? Thanks!

ScottGem · Apr 1, 2009, 02:55 PM

If you were granted a support order, then yes I think you you can get back support. The issue discussed in the other thread (and yes I moved your post to its own thread) was whether support could be made retroactive to before a claim was filed.

cadillac59 · Apr 1, 2009, 03:46 PM

I don't know why everyone is so baffled by this. How much simpler can it be?In California, you CANNOT receive/get an order for/ be granted retroactive support, whatever you want to call it, for any period preceding the date an action was filed with the court in which support was requested (for example, such an action would be a disso, legal separation, UPA case [paternity], petition for custody and support of minor children, a DCSS case for support). (Cal. Fam. Code section 4009). It IS the filing date of your case that controls.

The answer to this OP's question is maybe. The fact that an action was filed 4 years ago for support only means that the court has jurisdiction to make a support order retroactive 4 years. Now, normally, judges make support orders retroactive only to the date a motion for support was filed, which can be anytime after the action is filed (but never before). So, question. Was a motion for support filed 4 years ago? If so, what happened to the case? Was there a support order entered? If yes, then was it modified? If no, then yes, it is effective when it was ordered and if support is not current it will all be owed with interest. If no order was ever entered, then you probably will not get it retroactive 4 years. Making a support order retroactive is not automatic, it's discretionary with the judge. Note the discretionary language of the statute: " An original order for child support may be made retroactive to the date of filing of the petition, complaint or other initial pleading." (Cal. Fam. Code section 4009).

There's an urban legend floating around out there, based probably upon beauty parlor chit chat, that says that if mom waits till her kid is 17, has never asked for or been paid support by the absent dad and no support order was ever entered and no court case ever filed for support, that the said mom can trott into court, open a child support case, and suddenly get 17 years of "retroactive child support." I cannot speak for other states, but you cannot do this in California. No way. In fact, I would have serious doubts about the constitutionality of this being allowable even in other states that might otherwise authorize it.

cdad · Apr 1, 2009, 05:32 PM

Originally Posted by cadillac59

I don't know why everyone is so baffled by this. How much simpler can it be?In California, you CANNOT receive/get an order for/ be granted retroactive support, whatever you want to call it, for any period of time preceeding the date an action was filed with the court in which support was requested (for example, such an action would be a disso, legal separation, UPA case [paternity], petition for custody and support of minor children, a DCSS case for support). (Cal. Fam. Code section 4009). It IS the filing date of your case that controls.

The answer to this OP's question is maybe. The fact that an action was filed 4 years ago for support only means that the court has jurisdiction to make a support order retroactive 4 years. Now, normally, judges make support orders retroactive only to the date a motion for support was filed, which can be anytime after the action is filed (but never before). So, question. Was a motion for support filed 4 years ago? If so, what happened to the case? Was there a support order entered? If yes, then was it modified? If no, then yes, it is effective when it was ordered and if support is not current it will all be owed with interest. If no order was ever entered, then you probably will not get it retroactive 4 years. Making a support order retroactive is not automatic, it's discretionary with the judge. Note the discretionary language of the statute: " An original order for child support may be made retroactive to the date of filing of the petition, complaint or other initial pleading." (Cal. Fam. Code section 4009).

There's an urban legend floating around out there, based probably upon beauty parlor chit chat, that says that if mom waits till her kid is 17, has never asked for or been paid support by the absent dad and no support order was ever entered and no court case ever filed for support, that the said mom can trott into court, open a child support case, and suddenly get 17 years of "retroactive child support." I cannot speak for other states, but you cannot do this in California. No way. In fact, I would have serious doubts about the constitutionality of this being allowable even in other states that might otherwise authorize it.

Im going to say this out loud and clear.. I mean no disrespect.

I myself encountered a situation that caused a man and his family to be displaced because the courts ordered 16 years of back child support and took everything he had. This occurred aprox 16 years ago in the bay area. I worked with this guy for 7 years. He was a ex marine. He was a stand up guy. After his mother had passed and his name appeared in the paper is when they came after him and took the house that his mother left him and garnished his wages to the point he couldn't survive anymore with the 3 children he had taken in from his last wife. ( she turned into a drug addict )
He had no idea he had a child of his own. He found out when court papers showed up in the form of a garnishment at work and a court date was on it.
Now back then there wasn't a child support enforcement agency and most things were handled by the local district attorney. But it DID happen.

As far as constitutional goes and Calif they are miles apart on many things. Take a look at the 2nd amendment and see how Calif walks all over that one. How about the freedom to go unencumbered ? Thanks to grass roots M.A.D. they started having random stops for anything they felt was " in the public good ". Look into the true history of smog control in Calif or the seat belt laws and how they used it to overpower the people. Im sorry but I have no sympathy left when it comes to the voting public and the legislators.

Sorry for the rant but I had to say something because I saw it happen with my own eyes.

cadillac59 · Apr 1, 2009, 05:59 PM

Originally Posted by califdadof3

Im going to say this out loud and clear.. I mean no disrespect.

I myself encountered a situation that caused a man and his family to be displaced because the courts ordered 16 years of back child support and took everything he had. This occurred aprox 16 years ago in the bay area. I worked with this guy for 7 years. He was a ex marine. He was a stand up guy. After his mother had passed and his name appeared in the paper is when they came after him and took the house that his mother left him and garnished his wages to the point he couldnt survive anymore with the 3 children he had taken in from his last wife. ( she turned into a drug addict )
He had no idea he had a child of his own. He found out when court papers showed up in the form of a garnishment at work and a court date was on it.
Now back then there wasnt a child support enforcement agency and most things were handled by the local district attorney. But it DID happen.

As far as constitutional goes and Calif they are miles apart on many things. Take a look at the 2nd amendment and see how Calif walks all over that one. How about the freedom to go unencumbered ? Thanks to grass roots M.A.D. they started having random stops for anything they felt was " in the public good ". Look into the true history of smog control in Calif or the seat belt laws and how they used it to overpower the people. Im sorry but I have no sympathy left when it comes to the voting public and the legislators.

Sorry for the rant but I had to say something because I saw it happen with my own eyes.

What typically happens is a mom goes on welfare because she has a kid and the dad is for some reason out of the picture (maybe he doesn't know he's the father, maybe he's unemployed or doesn't care, who knows). Once welfare is paid, DCSS steps in for reimbursement. Or maybe the mom just goes directly to the agency and asks for a support order. Same result. A case is opened and somehow the dad is served but sometimes he doesn't respond to the complaint. A default judgment is then entered establishing paternity and a support order. DCSS tries to collect but cannot find the dad. Maybe the case lies dormant for many years for whatever reason.

All of the sudden, DCSS locates the dad (say some 16 years later) and they send him a bill for $100,000 of past due support and start a wage assignment. This is a VERY common scenario. Now, obviously this is no retroactive child support. It's just an old order for support that was never paid. That's totally different. That is typically what is going on. The poor guy is blindsided by the whole thing but technically he was probably the one who dropped the ball years ago (by ignorning service of the complaint).

There was a pilot program a few years back that ended I think in late 2007. It allowed the court to wipe out past due support that was rendered in a default situation like this one where the dad could prove by DNA testing he was not the father of the child. Many people got relief in these cases and it was a great program while it lasted. The nice thing was there was no statute of limitations that applied so anyone could get relief (there ordinarily is a 2 year statute to set aside old default support orders). Nowadays if the statute bars your claim to set aside the support, you're out of luck, even if the kid is not your biological child! Pretty harsh!

So, I agree, there are many situations like the one you described with very harsh outcomes.

I still think it might possibly be unconstitutional to retroactively apply child support to a period before a court case were filed. Where's the due process, where's the notice and opportunity to defend for the period prior to the filing of the court case? Just seems suspect to me. How fair is it to make a person defend the application of a support order for a period long ago?

cdad · Apr 1, 2009, 06:15 PM

As far as the Texas laws I think they had it pretty well in hand when one part of the stipulation to getting the " retroactive " support was the knowing of the child in the first place. It seems even if the NCP atempted to make payments on his/her own and it didn't meet court statuates it still could get them off the hook. I believe the bottom line is "knowing" that an obligation can or could exist. In today's world any man outside of marriage being accused of being the parent of a child for the first time needs to march off to court and make sure.

ScottGem · Apr 1, 2009, 06:18 PM

Originally Posted by califdadof3

I myself encountered a situation that caused a man and his family to be displaced because the courts ordered 16 years of back child support and took everything he had. ... After his mother had passed and his name appeared in the paper is when they came after him

Cadillac beat me to it, but he is saying what I was pointing out earlier. In your friend's case a default order for support was probably issued 16 years earlier. So support was not retoractive PRIOR to when support was filed for.

What this points out is that sex is not a recreation. Most likely your friend's child came from a one night stand so he never knew he had fathered a child. But this is what comes of promiscuity. I sympathize with your friends predicament, but it could have been avoided.

cdad · Apr 1, 2009, 06:32 PM

Originally Posted by ScottGem

Cadillac beat me to it, but he is saying what I was pointing out earlier. In your friend's case a default order for support was probably issued 16 years earlier. So support was not retoractive PRIOR to when support was filed for.

What this points out is that sex is not a recreation. Most likely your friend's child came from a one night stand so he never knew he had fathered a child. But this is what comes of promiscuity. I sympathize with your friends predicament, but it could have been avoided.

It wasn't a one nighter. It was his high school girlfriend. And she never said a word after they broke up. He went from high school into the marines for a 6 year tour. Then came back home to settle down. He honestly never knew. In the end he did develop a relationship with his " new " daughter. But it was sad to see what he went through. We had even took up a collection for him so he could feed the kids he had.

ANB428 · Apr 2, 2009, 06:33 AM

When my daughter was two months old, I left her father and went to a domestic violence shelter. When I was in the domestic violence shelter I had to apply for welfare and get a restraining order. Those were requirements for staying in the shelter. When I got my restraining order against the FOB I was granted sole custody with no visitations to the father until he completed a 52 weeks battery program and a drug rehab. He was also ordered to pay $254 a month for child support. When I applied for welfare, they took all of his information and said that they were going to go after him for child support and once they got back the money they gave me for the assistance, I would be getting the child support. Before I left California I talked to the DA and she told me that they haven't found him yet to serve him the papers. For the past four years I have been giving them address after address of where he is at and they send him the papers and never get a response, so they say that they can't find him. A few months after I left California I called the DA to change my address and I have made about 10 calls within the past three years to see what the status was. The restraining order that I had on him is now non-void because it is expired and I am not in the state that it was issued anymore. I don't know if I have sole custody of her anymore or not. I have the paperwork to file for custody for my daughter here in Alabama and I am just waiting to save up $300 to go file the papers, which is nearly impossible because I work two jobs just to support my child and all my money goes to bills and my daughter. So, I wanted to make sure that I will get all my back child support for the past four years. He is on the birth certificate as the father and my daughter has his last name. He is not denying her either. He is just on drugs and wants to do that rather than being a dad. That is his decision and I will support my daughter and give her whatever she needs, but it isn't fair that I bust my butt just to support my daughter and he just gets off the hook for everything. So, will it still go back to the day that the restraining order was issued for my back child support? Or will the child support start from when I go file these papers out here?

ScottGem · Apr 2, 2009, 07:19 AM

Unless the father went to court to obtain custody, then the CA order giving you sole custody remains in force. I don't know why you think you need to file in Alabama.

And I'm not sure why you are having trouble understanding this, but support will be retroactive to when you filed for support. At the latest, it would be retroactive to the date he was first ordered to start paying.

But remember, you got public assistance. This means that CA will want to be reimbursed for what they paid you first. So if they do get him, they will apply whatever he pays towards what you got from the state. After that, money would start going to you.

ANB428 · Apr 2, 2009, 07:26 AM

So, even though the custody was established through a restraining order that is non void, I still have sole custody? I don't have to go file out here? That is what I thought about the back support. Thanks!

And I understand CA will want to be reimbursed before I will be. I was only on assistance for about four months. They cut me off when I got a job and started making money, so they shouldn't take more than a couple thousand dollars, if that.

I have another question for you. The father is in jail right now. They have been telling me for years that they can't find him because they don't know where he is at. Who do I need to call to report that he is in jail? Do I need to go through CA or AL? Thanks.

I just want to get all of this straightened out while he is in jail and they can serve him papers.

ScottGem · Apr 2, 2009, 07:30 AM

Custody is not established "through" a restraining order. These are separate actions, even though they may have been part of a single court hearing. But custody would NOT be dependent on the restraining order. You were awarded custody AND a restraining order, but they were not mutually dependent.

Report it through CA.

ANB428 · Apr 2, 2009, 07:33 AM

Okay, so even if it says that I have sole custody in the restraining order and the child support is on the restraining order? That means that there were two judgements? I only received the paperwork from the restraining order. I have not received any other paperwork that says I have custody except for the restraining order.

cadillac59 · Apr 2, 2009, 10:27 AM

The restraining order that I had on him is now non-void because it is expired and I am not in the state that it was issued anymore. I don't know if I have sole custody of her anymore or not.

Your restraining order may have expired but your custody orders arising out of the restraining order are valid. Also, if the dad is still living in California, California has continuing exclusive jurisdiction over both child support and child custody. You'd be wasting your time and money to file in Alabama because the Alabama court would throw your case out for lack of jurisdiction.

Your CA support order is still valid and you are entitled to collect onging support and the arrearages, with interest. Keep working with DCSS and have them try to collect it for you (or check with the local Alabama child support agency about getting them to help).

cadillac59 · Apr 2, 2009, 10:31 AM

The restraining order that I had on him is now non-void because it is expired and I am not in the state that it was issued anymore. I don't know if I have sole custody of her anymore or not.

You can still open up a case with the Alabama child support agency (and since you live there I think DCSS expects you to do that--you might need to make a simple call and check on this). Alabama cannot modify the support and you cannot modify custody in Alabama but the orders can still be enforced in Alabama, or anywhere else.

ANB428 · Apr 2, 2009, 10:33 AM

Okay, I will do that. Do I need to get any papers from California saying that I have custody, or will the expired restraining order be proof enough. I want to make sure because he threatened me about three months ago before he went to jail that he was going to come and take my daughter. I just don't want that happening. When I talked to my daughter's daycare, they told me that they need paperwork saying that I have sole custody with no visitations to the father and if they don't have that paperwork then he could just come up there and get her. I am just trying to protect my daughter and myself. Thanks for all of your patience and advice!

ANB428 · Apr 2, 2009, 10:35 AM

Originally Posted by cadillac59

The restraining order that I had on him is now non-void because it is expired and I am not in the state that it was issued anymore. I don't know if I have sole custody of her anymore or not.

You can still open up a case with the Alabama child support agency (and since you live there I think DCSS expects you to do that--you might need to make a simple call and check on this). Alabama cannot modify the support and you cannot modify custody in Alabama but the orders can still be enforced in Alabama, or anywhere else.

Who do I need to call to check on this? The Family Court office? How can I get the case moved to the state that I am living in? I don't plan to go back to California since neither the father or I am from that state, we moved out there together. If anything ever needs to be modified to the order I will not be able to get out to California. I don't have the money to buy a plane ticket or drive out there.

ScottGem · Apr 2, 2009, 11:54 AM

You need to read what the order says carefully. I suspect that what you have is a judgement from the court that states something like

Restraining Order...

Custody Order...

Support Order...

Each piece a separate order, but delivered as part of an overall judgement.

ANB428 · Apr 2, 2009, 12:16 PM

I am not sure. I will look at the paperwork that I have tonight and let you know what it says. I don't recall seeing three separate orders.

cadillac59 · Apr 2, 2009, 04:59 PM

The restraining order includes orders on custody and support as one document. The fact that the restraining order has expired doesn't mean anything.

You might order a copy of the court's file from the clerk's office just to show it to whomever is interested. It might have a minute order that is separate that would help clarify what happened.