Sometimes a father does not learn that he is the child’s biological father until years after the child’s birth.
Sometimes, an unwed father is actively engaged with the child from his or her birth, but perhaps does not provide regular, fixed-dollar amounts of financial support on the child’s behalf.
Sometimes, an unwed father provides substantial support to his child from the date of conception, both emotional and financial.
In any of the previous referenced scenarios, the father may ultimately be forced to respond to the mother’s decision to request a court order requiring the father to pay a fixed amount of monthly child support. Fathers in this predicament will oftentimes ask whether or not they will be required to pay “back child support” or “retroactive child support.” These child support payments are also known as “arrears”. We dive further into Georgia child support arrears laws below.
Georgia does not have a law that requires a parent in these circumstances to pay retroactive child support arrears. This means that if you are ultimately required to pay Georgia child support arrears pursuant to a court order, then the court will not necessarily require you to pay to the mother the amount of monthly child support that you may have otherwise been required to pay from the date of the child’s birth to the present.
Back child support in Georgia is not necessary because the Georgia Child Support Statute only provides for prospective child support, which means child support beginning from the date that the court enters the order. There is case law in Georgia, however, that permits a custodial parent to request that the court require the non-custodial parent to pay what is referred to as “past due expenditures” incurred on the child’s behalf both during pregnancy and post-pregnancy.
However, once child support is ordered by the Georgia courts, there is no statute of limitations on the payment arrears. This means that if you are ordered to pay child support and then miss your payments, they will never expire.
This requirement originates from a Georgia law that states it is “the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child” until he or she reaches the age of majority, except to the extent that the duty of one parent is otherwise or further defined by court order. See O.C.G.A. § 19-7-24.
In 1990, the Georgia Supreme Court addressed the issue of whether or not a mother may request that a court order the father, after paternity is established, to reimburse her with back child support for expenses that she incurred on the child’s behalf prior to the establishment of a court order. Weaver v. Chester, 195 Ga. App. 471 (1990).
In this case, the court held that the mother is legally authorized to make such a request; however, she may only request reimbursement of those expenses to the extent and amount that she actually incurred. Id. at 473.
The fact that the mother could have incurred more expenses had the father been involved (presumably, with an income or financial means to lend financial assistance to the mother on the child’s behalf) is not a valid basis to request an amount greater than the sums actually fact incurred.
The decision in this case means that provided the mother can establish the amount she incurred for pregnancy related medical expenses, and other necessary expenses on the child’s behalf prior to the establishment of a court order, then she is authorized to request that the court order the father to pay for these expenses after paternity is established.
Some of the Georgia trial courts interpreted the Supreme Court’s decision in Weaver v. Chester to mean that a father could be 100 percent responsible for the mother’s pregnancy and birth-related medical expenses.
For example, in the case of Coxwell v. Matthews (a case decided approximately three years after Weaver v. Chester) the Georgia Supreme Court affirmed a lower court’s ruling in which it granted a mother, in a paternity action, $15,458.98 in pregnancy and birth-related medical expenses. Coxwell v. Matthews, 263 Ga. 444 (Ga., 1993). In this case, the mother requested $15,458.98 and received an order granting her all sums requested.
In affirming the lower’s court’s decision, the Georgia Supreme Court reasoned, “that the duty to protect and maintain a child includes the duty to ensure that the child receives adequate medical care prior to and during birth.” In this case, the Georgia Supreme Court did not address the apparent unfairness in the lower court’s decision to order the father to pay for 100 percent of the mother’s pregnancy and birth-related medical expenses.
A more recent Georgia case, however, has substantially narrowed the father’s financial responsibility in these circumstances. In Smith v. Carter, a 2010 case, the Georgia Supreme Court held that under the current Child Support Guidelines, when considering a request by the mother for reimbursement of past due expenditures incurred on the child’s behalf to include pregnancy-related medical expenses and necessaries incurred in raising the child prior to the establishment of a court order, the lower courts must now take into consideration the mother’s income. Smith v. Carter, 305 Ga. App. 479 (2010).
This means that neither the mother nor the father is exclusively responsible for the child’s expenditures incurred prior to the establishment of a court order; instead, the courts are required to review reimbursable expenses incurred by the mother and allocate responsibility after taking into consideration both parent’s incomes.
To conclude, Georgia does not provide for “retroactive child support” or “back child support.”
Rather, prior to the establishment of a Child Support Order, the father may be responsible for the mother’s pregnancy and birth-related medical expenses, and subsequent expenditures for necessaries incurred on the child’s behalf, only to the amount the mother actually incurred.
Prior to ordering the father to pay for any of these expenditures, the court is required to take into consideration to both parent’s incomes.