To address a parent’s failure to pay child support for a child born within a marriage or out of wedlock, certain levels of non-support have thresholds that have been addressed by statutes. For example, at the state-level, there are statutes that make non-support a felony to prohibiting a licensed professional from renewal.
Under federal law, a significant child support arrearage may cause non-renewal or issuance of United States Passport. Today, the Indiana Court of Appeals decided an important case that shows the ways to potentially retroactively modify child support ordered by a trial court.1 These exceptions show when your income changes or the facts dictate, there are only three ways to retroactively modify child support (from accruing at the existing level).
The first is to file a Petition to Modify Child Support under the child support modification statutes found in the Paternity and Dissolution Acts. While such a petition may be continued and heard at a later date, a trial court can only retroactively reduce (or increase) child support back to the date of the filing of such a Petition, such being within its discretion. This is always the advisable route. If there is a change that allows modification under the statute, act!
The second is when an actual change of physical custody switches from one parent, even in the absence of a modification of support petition. A trial court may later retroactively modify support back to the facts that evidence this change, even in the absence of a pending Petition. However, there is great risk in this approach as sometimes facts are hard to prove or disputed. Thus, it prudent to file a Petition and act on it instead of risk having to prove your case in Court on whether custody actually changed from one parent to the other.
The third and last is where the parents have agreed to and carried out an alternative method of payment which substantially follows or comports with the existing child support order. However, this too is a risky approach as this must be evidenced by the facts and support the trial court not determining these were a gift or did not substantially comport with its order.
These exceptions to court-ordered support are narrow because child support is for the benefit of the children, and not that of the parents. Thus, they, parents, cannot ignore its payment. When your income significantly increases or decreases, you lose your job or want to try something different than the court ordered, you take a great risk. Know your legal duties, rights, and the risks. Today, the Indiana Court of Appeals provided clear guidance on the need and requirement to pay support and the context of these narrow exceptions.
This blog post was written by attorneys at Dixon & Moseley, P.C. who handle child support matters of all types throughout the state, from enforcement to modification. This blog post is written as general educational material and is not a solicitation for legal services. In addition, it is not for specific use in a particular case. It is an advertisement.