Legal Question in Family Law in California
"My ex-wife threatened to sue me for back child support when I have been the sole provider for our daughter for years now. Please help."
I actually asked this question a few days ago and received great answers but I forgot to add in a detail that might possibly change things. In a nut shell, when my ex-wife and I got divorced almost ten years ago, she was awarded more physical custody (around 80/20) because at the time she had been a competent mother up till the point of divorce. A few months later following our divorce, she was unable to care for herself and our daughter anymore and we decided, only verbally and without going to court to change anything, that our daughter was to have her primary residence with me, that the mother would visit when possible, and that I was to no longer pay her the court ordered $1,000.00 a month in child support because the child would obviously be under my care. Its been a rollercoaster ride all these years with her mother being in a string of abusive relationships while I have been with the same woman for almost ten years now (we have now been happily married for four years with our 3yr son and my daughter all living together this whole time). Unfortunately last year, during a visit with her mother, my daughter witnessed a horrible domestic physical abuse between her mother and then boyfriend. With the help of CPS and detectives, we went to court and quickly got everything, finally legally documented, switched so that it shows we have more physical custody. Also, my request for the old orders of child support to be stopped were of course approved. Im at the point now that I want to order my ex-wife to pay me child support but she threatened that she is able to get all the back child support from me because we never went back to court to legally document the change of our consensual, verbal arrangement from all those years ago. Is there really a legal loophole that gives her a right to that money even if my daughter has been living with me all these years and counting, without a penny given to us by her mother? Were scared to pursue child support because of her threat. We have tax records, school records, and many friends and family that can attest that it has been me and not her mother who has been the primary caregiver. Thanks and any help would be greatly appreciated.
2 Answers from Attorneys
It is not a legal loophole. You have it backward. It is you who have not been complying with a clear court order and are trying to find a loophole so as not to pay what you were ordered to pay. The legislature in its wisdom has seen fit to very clearly establish the rule that judges cannot retroactively modify support orders any further back than the date of the motion or other application for a modification of support. Fortunately for you the courts have crafted a loophole for YOU that allows them to give you credit for ACTUAL custodial time that was greater than the custodial time in the existing custody visitation and support orders. This is called giving Jackson credits, named for the case in which the loophole was created by case-law. But it is up to you to ask for and demonstrate entitlement to have that loophole applied to your case. If the mother essentially walked away from her child, the Jackson credits should pretty much if not entirely eliminate the arrearages, but the burden is on you to apply for them and prove entitlement.
My advice remains as I had stated. You need to file a motion with the court to ask the court to give you credit for all of those years that you took care of your daughter. Right now, you ex could, without notice to you obtain a writ of execution and execute against your property or your wages. You would then need to file a more complicated motion to set it a side and to enter the order that I suggested you file a motion. Get an attorney now, old saying, a stitch in time saves nine.
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