Let’s say John Smith and Jane Doe are dating. They break up…and then Jane realizes she’s pregnant. She gives birth, but John doesn’t believe the child is his – he wants nothing to do with Jane, or their baby. After raising the baby on her own for a year, Jane applies for child support. John is reluctant to pay, but a paternity test proves that he’s the father, and now a judge has to determine how much child support John owes.
Can the judge force John to pay child support retroactively – that is, to pay child support for the time that has already passed? If John and Jane live in Illinois, the answer is yes.
At the very least, John will have to pay child support going back to when he was first notified that Jane had applied for child support. But the judge also has the option of requiring John to pay child support going back as far as the day the baby was born.
The Parentage Act
Illinois’s Parentage Act deals with situations (such as the one described above), in which the parentage of a child is under dispute. It also lays out how child support will be handled. It states, “The court shall order all child support payments…to commence with the date summons is served.” (The summons in question is the notification a parent gets, informing them that their child’s other parent is seeking child support payments.) The statute goes on to say, “The court may order any child support payments to be made for a period prior to the commencement of the action.
In other words, retroactive child support going back to the date of the summons is mandatory in these situations – and it could go back even further. Whether it should go back further than the date of the summons is up to the court. The statute lays out the factors that a court must consider when deciding whether this would be appropriate. These factors are:
- The father’s prior knowledge of the fact and circumstances of the child’s birth.
- The father’s prior willingness or refusal to help raise or support the child.
- The extent to which the mother or the public agency bringing the action previously informed the father of the child’s needs, or attempted to seek or require his help in raising or supporting the child.
- The reasons the mother or the public agency did not bring the action earlier.
- The extent to which the father would be prejudiced by the delay in bringing the action.
Please be aware that this statute does not apply to divorce scenarios, in which one of the child’s parents is required to pay child support after divorcing the child’s other parent. A future blog post will explain how retroactive child support works in these situations.
The Importance of Legal Advice
If you have primary custody of a child, and you believe that your child’s other parent may owe you retroactive child support – or if you don’t have primary custody of your child, and you believe that you may be required to pay retroactive child support – you should speak to an attorney. The family law attorneys at Fay, Farrow & Associates, P.C. in Naperville, Illinois, can advise you on what your best options are. You can call us today at (630) 961-0060 for a consultation.