Back Child Support Can Be Limited to 5 Yrs: New Law in 2017

As of 2017, Tennessee child support law can limit retroactive child support to a five-year period counting backwards from date of the filed request.  Back child support statute of limitations in Tennessee.

Key changes were recently made to Tennessee’s retroactive child support law. Public Chapter 419 is one of several acts concerning domestic relations matters passed by the General Assembly and signed into law by Governor Haslam on May 18, 2017.

Tennessee child support law can limit back child support to a five-year period.

Seeking Child Support Arrearages After PC 419

In summary, the act amended two existing family law statutes in order to limit the years of retroactive child support the custodial parent could seek in court.

The first statute amended was T.C.A. § 36-2-311, the law on establishing parentage. The second was T.C.A. § 36-5-101(e)(1), the law on child support orders generally in divorce, legal separation, and proceedings to modify custody and support. The amendments have almost identical provisions speaking directly to actions for retroactive child support. The PC 419 affects all retroactive support actions filed on or after the effective date of July 1, 2017.

Five-Year Limit on Retroactive Child Support

In Tennessee, child support orders are entered in divorce proceedings. If parents are unmarried, however, child support orders are entered after parentage is established (or paternity establishment). But depending on the child’s age when parentage is established, the retroactive amount owed could be significant. How long can the custodial parent delay filing for retroactive support plus interest? (Read our post on new interest rates on arrears!)

The bottom line is that PC 419 amended Tennessee law by limiting to a five-year period how far back the court can reach for retroactive child support. That would be counting backwards five years from the date of the Primary Residential Parent’s filed request (the PRP). This was accomplished by adding a new subdivision: T.C.A. § 36-2-311(a)(11). However, there is one important exception.

Back Child Support Statute of Limitations in Tennessee: Exception to Five-Year Retroactive Limitation

If the judge determines that the parent seeking an award of retroactive child support established “good cause” for why support should be awarded earlier than five years ago, then it may so order (discussed below).

The court has judicial discretion in the matter. Should the court deem it just and equitable under the circumstances that a shorter or longer period of retroactive support is warranted, then the judge has discretion to order it. The court may find it just and equitable to go back five years and nine months, for instance, or may shorten the period to four years. Everything depends upon the judge and the specific facts of the case.

How to Show Good Cause

How does good cause translate into evidence? Although not intended to limit what the trial judge might consider to be good cause under the circumstances, the statute provides several possibilities. If the custodial parent, then he or she must prove:

Back child support statute of limitations in Tennessee.

• The other parent deliberately avoided service, or knowingly delayed or impeded imposition of child support orders; or
• The other parent used threats, intimidation, or force to delay or prevent the court’s imposing child support orders; or
• The custodial parent reasonably feared domestic abuse if a petition to establishment parentage was filed.

The amended statute does not specify what good cause means regarding the noncustodial parent’s case for less than five years of support.  Instead, the noncustodial parent (or Alternate Residential Parent, ARP) shoulders the burden of establishing good cause for a shorter time-period in the interest of justice. Be prepared with a case strategy and supporting evidence.

Parent’s Burden of Proof

There are specific burdens of proof under the amended statute, too. On the one hand, the burden of proving that a longer period of retroactive support is in the interest of justice is on the custodial parent seeking retroactive support. On the other hand, the noncustodial parent has the burden of proving it is in the interest of justice that less than five years of retroactive support be ordered.

Harmonizing Tennessee Statutory Law

To fully realize the new legislation on retroactive child support actions, the language of T.C.A. § 36-5-101(e)(1) was harmonized with that of § 36-2-311(a)(11). Essentially the same language was used to revise both.

The new subdivision – T.C.A. § 36-5-101(e)(1)(I) – changes child support law as it relates to the order, the court’s jurisdiction, the amount of support, enforcement of orders, modification of orders, insurance, and scientific parentage testing.

Presumption of Child Support from Birth Unchanged

The amended law does not change the legal presumption that child support should be ordered retroactively to the child’s birth as set forth in the Tennessee Child Support Guidelines.

Tennessee child support guidelines states a presumption that child support should be ordered retroactively to child’s birth but retroactive child support can be limited to 5 years.

Generally, in a case where little or no support was provided by the noncustodial parent, the court could count the months going back to the child’s birth (even 18 years). The court includes retroactive support with current support in the first order establishing obligations.

When the PRP asks for retroactive support, the judge is limited to five-years of it. That is despite the initial order’s inclusion of retroactive support going back to the child’s birth.

A child born five years ago should raise few issues for the PRP.  If the baby was born 10 years ago, however, then an order of only five years of retroactive support could cause financial problems for parent and child. The good cause exception may help, but what about 15 years or 18 years?

Arguably, the pendulum has swung slightly toward the ARP’s side. Given most ARPs are dads, PC 419 appears to be one feather in the father’s rights cap.

No Impact on DHS Actions for Child Support Arrears

Public Chapter 419 did not alter the Tennessee Department of Human Services’ ability to retroactive collect support. DHS may pursue a claim for the retroactive child support owed to it without the five-year limitation imposed on individuals.

The effective date of PC 419 was July 1, 2017, so all future filings for retroactive child support must comply with the new law. Expect Tennessee trial courts to limit retroactive child support awards to five years, even when the period was much older.

When the PRP knows the child’s parentage, the PRP should consult a family law attorney about filing to legally establish parentage and obtain a child support order. Delay could result in essentially forgiving years of support outside the new five-year window. The PRP with good cause for some or all of the missed payments should be prepared to prove it. Lastly, be mindful that either party may ask the court to depart from the new five-year rule.