Can I get reimbursed for child support when no order was entered?
Child support is owed even if a child is born out of wedlock. The amount of child support is determined by the court based upon a set of guidelines. These guidelines provide the percentage of the noncustodial parent's adjusted gross income that should be paid as support based on the number of children eligible.
If a child was born out of wedlock and the father has not admitted that the child is his, he cannot be ordered to pay child support until his status as the father has been legally established. This can be done one of two ways:
•By Agreement: The father and mother can sign an "Affidavit of Paternity" and file it with the Kentucky Office of Vital Statistics, which will then change the birth certificate.
•By Court Order: A court can declare a man the father, order him to pay support (including the mother's hospital birthing expenses), and place the father's name on the child's birth certificate. A paternity suit will be brought by the county attorney or an attorney for the Cabinet for Families and Children on behalf of the mother or other person caring for the child.
If paternity is established, the court, if asked, will set up child support payments and custody arrangements.
Courts are more likely to disestablish paternity based on DNA test results if the man presumed or adjudicated to be the father of an out-of-wedlock child was never married to the child's mother, although he will remain liable for any support arrears accumulated before paternity was disestablished.
Cuyahoga Support Enforcement Agency v. Guthrie, 84 Ohio St.3d 437, 705 N.E.2d 318 (1999) provides an example. In that case, the child support agency initiated a paternity/child support action against Mr. Guthrie in 1994. Mr. Guthrie did not appear in that action or answer the complaint. Relying on the mother's testimony, the court found that Guthrie was the father and ordered him to pay child support. In September 1995, the child support agency sent Guthrie a letter stating that he owed $960 in unpaid child support and advising him that the arrearage would be referred to the IRS for collection and reported to the credit bureau. Assisted by appointed counsel, the father obtained genetic testing to determine parentage. After DNA test results excluded Guthrie as the father of the child, the court entered judgment in his favor and recommended that the magistrate's finding of paternity and child support order be vacated and set aside, pursuant to Rule 60(b). The Supreme Court of Ohio affirmed the part of the decision that vacated the paternity determination and curtailed his child support obligation but refused to absolve him of responsibility for child support arrears accrued before disestablishment.
The Supreme Court of Alaska permitted a father, who admitted paternity, to disavow paternity of an eleven-year-old out-of-wedlock child more than six years after the paternity/support judgment was entered, Ferguson v. Dep't of Revenue, 977 P.2d 95 (Alaska, 1999). In that case, the putative father signed an acknowledgment of paternity in response to a paternity/child support action initiated by the child support agency. Later, after learning that he might not be the child's biological father, Mr. Ferguson filed a Rule 60(b) motion seeking to vacate the paternity order and obtain relief from his child support obligation. The Supreme Court of Alaska affirmed the trial court's decision, which vacated the paternity judgment and ordered the child support enforcement agency to stop collecting future child support, but denied the father's request for retroactive relief from arrears, accumulated while he was the child's legal father.
Reversing prior holdings based on a recent statutory change, the Maryland Court of Appeals recently held that Family Law Article Section 5-1038(a)(2)(i)(2) applies retroactively to any action to disestablish paternity, regardless of the date when paternity was established, Langston v. Riffe, 359 Md. 396, 754 A.2d 389 (Md. 2000). This provision gives an adjudicated father the right to reopen and challenge the paternity declaration against him when post declaration genetic test results show that he is not the child's biological father. The Court further held that the adjudicated father may request a blood or genetic test in order to confirm or deny paternity. A determination of the best interests of the child is inappropriate and irrelevant to deciding whether to order genetic testing or disestablish paternity.
The decision impacts any Maryland paternity determination made without genetic testing (although not voluntary acknowledgments entered under Maryland's current statute). Several questions arise as a result of this ruling. Where no genetic testing was involved, is a Maryland paternity order entitled to full faith and credit under PRWORA? May a man whose paternity determination is subject to reopening in Maryland request genetic testing in a subsequent UIFSA proceeding or only in Maryland?
The Supreme Court of Arkansas used a different approach to grant relief to a father in Littles v. Flemmings, 333 Ark 476, 970 S.W.2d 259 (1998). In that case, the mother initiated a child support/paternity action against the putative father shortly after the child's birth in 1982. The chancellor ordered a blood test, for which the father was to pay. The test was not performed because the putative father could not pay for it. The chancellor found that the putative father was the child's father and ordered him to pay $50.00 per month in child support. The father did not appeal from that judgment. Genetic tests, performed 13 years later, showed that the legal father was not the child's biological father. Although the Supreme Court of Arkansas found that it could not vacate the prior finding of paternity, it abated the father's future child support obligation.
An Indiana court denied the father's motion to vacate a default order that established his paternity of an out-of-wedlock child and ordered him to pay child support to the mother, Nickels v. York, 725 N.E.2d 997 (Ind. Ct. App. 2000). The father, who had paid child support to the mother for two years after entry of the order, could not challenge the court's authority to enter the order in response to an enforcement action, initiated 16 years later.