How to Waive Rights to Retroactive Child Support

By Rob Jennings J.D.

Sometimes a parent will try to use child support as a bargaining chip to negotiate custody with the other parent. The custodial parent usually has a right to current child support and retroactive child support dating from a certain time in the past. The ability to waive retroactive child support, however, depends on state laws and may even be considered a right of the child, not the custodial parent.

Time Period

An initial setting of child support typically begins at a date prior to the entry of the order, which creates instant child support arrears. Some states award support from the date of the filing of the child support petition, but some states award it even earlier than that. If the mother received welfare benefits, child support may be awarded retroactive to the date benefits were first paid. Any payments made between the beginning date specified in the order and the date of the support determination will be credited against any arrears. Some states even allow a custodial parent to request retroactive child support dating from the birth of the child. This is more likely when the parents were never married and the noncustodial parent has never contributed anything to the support of the child.

Retroactive Child Support

Each state differs in how it handles retroactive child support. In some states, this back child support is mandatory. In other states, the custodial parent must specifically request it in her court documents, and awarding it is in the discretion of the judge. The courts are more likely to order a parent to pay retroactive child support if it is shown that he knew, or should have known, he had an obligation to support the child but did not. Courts do not, however, expect a parent to know the exact amount they should pay.

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Waiver

If a custodial parent wants to waive retroactive child support, she should state this in the petition for support. However, some states may not allow waiving this support. Depending on state law and the reason the custodial parent wants the retroactive child support waived, the court may or may not waive that support. When a parent wants to waive retroactive support that is already court ordered, she must generally file a motion with the court to set aside the original support agreement. This motion must explain why the parent wants to modify the agreement to eliminate retroactive child support. Whether the court grants this motion is dependent upon the facts of that particular case and the laws of that state.

Child's Rights

Some states view the right to waive retroactive child support as one that belongs to the child and not the custodial parent. Since the child is a minor, that child is not considered competent to make the decision to waive support. Therefore, some courts are reluctant to allow a parent to waive child support.

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Does Child Support Go to the Children After They Move Out?

References

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