How to Get Back Child Support Waived

By Angie Gambone

An order for child support is a binding court document that sets forth a particular amount of money that a noncustodial parent must pay to the custodial parent to help pay for a child's needs. When a noncustodial parent fails to pay child support pursuant to a court order, the past due child support continues to add up. This is called child support arrears. In some situations, a noncustodial parent may wish to have his child support arrears waived. This can be difficult to achieve, depending on many factors. The court will always look to see if this is in the best interests of the child, and each situation will be determined on a case-by-case basis.

Child's Right to Support

Child support is determined by state law, instead of federal law. Because of this, how child support arrears are handled will vary, depending on where you live. In all states, child support is considered a child's right, instead of a parent's right. Courts are reluctant to allow parents to negotiate child support away because this may negatively affect the child, and the child is too young to make this decision on his own. Courts usually view all changes to child support by examining what is in the best interests of the child.

Waiver of Arrears

In some circumstances, a custodial parent may agree to waive past due child support. This may be because she is financially capable of caring for her child without the past due support. It also may be because the noncustodial parent has made an offer to pay a portion of the past due support in exchange for the custodial parent waiving the remaining balance. Another example may be that the custodial and noncustodial parents have reconciled, and are living together and sharing expenses. Whatever the reason, remember that a custodial parent does not automatically get to waive past due child support, without the court's approval.

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Waiver Motion

If a custodial parent and noncustodial parent reach an agreement with respect to the waiver of past due child support, the custodial parent must file a motion with the court that issued the initial custody order. As part of that motion, the custodial parent would provide the agreement she reached with the noncustodial parent. The agreement must be signed by both parents. The court would then review all of the financial circumstances of both parties and decide whether or not it is in the child's best interests to waive the past due support. If the court agrees to the waiver, the court will issue a new child support order that erases the past due support. Even if past due child support is waived, the noncustodial parent can still be required to pay current child support each month.

Judicial Investigation

When deciding whether to waive past due child support, the court will do a judicial investigation into the best interests of the child. The court will examine the agreement that the custodial parent and noncustodial parent reached, and see if it protects the child. If the court finds that the custodial parent can support the child financially without the past due support, the court is likely to accept the agreement. If the court believes that the child needs the past due support, the court can refuse the agreement. There is no black-and-white rule during these investigations, and each case will be different, depending on the unique facts surrounding the family.

Retroactive Child Support

Child support is not automatically awarded when a child is born. Child support only becomes effective when a custodial parent files a motion with the court asking for child support. This only pertains to couples who are separated or were never together. For example, it may be the case that a mother who was never in a relationship with her child's father does not file a petition for child support until the child is three years old. Years later, if there is past due child support owed, it will not be owed from the date of the child's birth but instead will be owed from the time the child was three until the present date. The child support that would have been owed during that child's first three years of life would be deemed waived, since the mother never filed any paperwork with the court. For this reason, it is extremely important that if you have custody of your child and you are not together with your child's other parent, that you file a motion for child support as soon as your child is born. Once you do this, if the noncustodial parent refuses to pay, any child support arrears will be owed for the entire duration of your child's life.

Child Support Owed to State

In some situations, past due child support will be owed to the state instead of the custodial parent. This most commonly occurs when the custodial parent has collected welfare or other public assistance during the years when they were not receiving child support. If this is the case, the noncustodial parent would be required to pay the child support arrears to the county that issued the original child support order. The noncustodial parent may also be required to reimburse the state public assistance department that provided the welfare payments to the custodial parent.

State Policies

If a noncustodial parent owes past due child support directly to the state, there are some policies in place that may assist them in reducing the balance owed. Some states, such as California, offer a child-support reduction program that allows noncustodial parents to "settle" their debt by paying one lump sum that is approximately 20 to 30 percent of the total owed. The remaining balance is then erased. Also, if a noncustodial parent files for Chapter 13 bankruptcy and then works a full-time job for five years, he can request to have the interest waived on his past due support. In some situations, past due child support will be waived if you can prove that your child lived with you during the years when you were not paying the support to the custodial parent. Finally, it is sometimes possible to have past due child support waived if you can show that the court did not serve you properly with the court documents when the initial order was entered.

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How to Waive Rights to Retroactive Child Support

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New Mexico Child Support Regulations

In New Mexico, the amount of child support is determined based on the principle that a child should receive the same level of support he received while his parents were married or still living together. This requires both parents to contribute to the total obligation in proportion to their incomes, based on a formula established by state law. Once ordered, the child support obligation lasts until the child reaches the age of majority.

California Laws on the Interception of a Tax Refund for Child Support Arrears

If you have a child support order under California law, you have the right to have the order enforced through tax refund interception. Since 1993, California's Franchise Tax Board has had the authority to enforce child support orders through the interception of tax refunds due from the state as well as the Internal Revenue Service. This, along with other remedies, are available to the custodial parent if the non-custodial parent is not paying court-ordered child support or paying less than the amount ordered.

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