Is child support ever latched?

[olanna]

Dear Socrateaser,

My son had been living with his father until last June.  He is now 17, (was 16 when he arrived), and told his father he no longer wanted to live with him but wanted to come out and live with me. His father refused to agree to signing over legal custody but at the age of 17, I felt it ridiculous to go to court about it. Until, that is, SC came after me here in CA to collect child support they claim in arrears.  I once again, had my lawyer call my ex directly, and ask him to agree to sign off on things. It is at this point my lawyer suggested that I go after the support that was never paid to me when my son lived with me.

1. My ex never paid child support to me. The original order was in SC. My ex still resides in SC but my all my children from this marriage, (now two of the three are adults), live in CA. I also live in CA.

2. My ex's atty is attempting to prove that my ability to request back child support or current child support is "latched"..in other words, (and pardon me if this is rudamentary to you), beyond the time I can collect it.

3. My atty is telling me that child support is never "latched" and if SC will not allow me to open the case, I could very well open the case here in CA.

4. CA is attempting to enforce an order that originated in SC.  I have my day in court next Tuesday to open up my case against my ex here in CA.

5.  According to my records, my ex owes me $55K in arrears, not to mention any current support that should be paid to me since my son came to live with me.

What are your feelings on this issue being "latched'?

[socrateaser]

>1. My ex never paid child support to me. The original order
>was in SC. My ex still resides in SC but my all my children
>from this marriage, (now two of the three are adults), live in
>CA. I also live in CA.
>
>2. My ex's atty is attempting to prove that my ability to
>request back child support or current child support is
>"latched"..in other words, (and pardon me if this is
>rudamentary to you), beyond the time I can collect it.
>
>3. My atty is telling me that child support is never "latched"
>and if SC will not allow me to open the case, I could very
>well open the case here in CA.
>
>4. CA is attempting to enforce an order that originated in SC.
> I have my day in court next Tuesday to open up my case
>against my ex here in CA.
>
>5.  According to my records, my ex owes me $55K in arrears,
>not to mention any current support that should be paid to me
>since my son came to live with me.
>
>What are your feelings on this issue being "latched'?

Depends on SC law, unless your attorney can prove that CA has jurisdiction. If father never lived in CA, never did affirmative act to cause the children to be in CA, didn't conceive the kids in CA, then CA does not have jurisdiction. Otherwise, CA might have jurisdiction, if SC never ordered it.

Lots of ifs.

If CA has jurisdiction, then no laches on child support principal. Laches only on the interest.

Laches requires unreasonable delay and unfair prejudice. If you had no good reason to delay coming after the money, and you never tried to enforce your rights, then that would satisfy the first element. If your ex materially altered his position in any way that, but for your failure to prosecute for support, your ex would not have done, that might satisfy the second element. Courts are pretty loathe to foreclose a child support case on laches, unless the obligor parent actually paid money in lieu of support or actually provided substantial direct custody and care (food, clothing, shelter), during the period for which you seek support payments.

I can't say which forum state would be more open to a laches defense, but CA is definitely not laches friendly, because the family code expressly prohibits it except for interest on the support arrears.

[DecentDad]

Given that child has been in CA nearly a year, can she file for child support in CA for the remaining child due to de facto custody (and perhaps CA orders for child custody, based upon change of circumstance that child has been with her for a year)?

Then, at least she'd be able to get child support retroactive to filing date (in CA), which could offset monies due to the other parent.  And perhaps get child support orders to support child while full-time student, to boot?

Or if she can't do it in CA, can she go ahead and file the modification in SC, presuming SC operates in a similar fashion on determining child support (which of course I don't know)?

I'm just wondering if there's a way to start building Dad's own obligations on paying CS, if mom's can't be wiped out.

[socrateaser]

>Given that child has been in CA nearly a year, can she file
>for child support in CA for the remaining child due to de
>facto custody (and perhaps CA orders for child custody, based
>upon change of circumstance that child has been with her for a
>year)?
>
>Then, at least she'd be able to get child support retroactive
>to filing date (in CA), which could offset monies due to the
>other parent.  And perhaps get child support orders to support
>child while full-time student, to boot?
>
>Or if she can't do it in CA, can she go ahead and file the
>modification in SC, presuming SC operates in a similar fashion
>on determining child support (which of course I don't know)?
>
>I'm just wondering if there's a way to start building Dad's
>own obligations on paying CS, if mom's can't be wiped out.

Even if father acquiesced to the child's moving, there was already a support order in SC, and the father hasn't moved, therefore SC retains jurisdiction on the support issue, even if CA gets control of the custody issue.

The mom may be entitled to credit for support paid to the father during the time the son was in CA, but she cannot, under federal law, get retroactive support from the father for that same period, because she never filed a motion or OSC to modify support.

After she files, then she's entitled to support from the filing date forward.

[DecentDad]

So it seems she should file to modify support ASAP in SC, regardless of how the existing arrears are disposed.

Else, the earliest retroactive date just gets pushed farther and farther into the future.

Two separate issues now, is what it seems like the original poster should be examining... past and future (and the separation of those is going to be whatever date the modification is filed).

I know she asked about laches regarding the past, but seems like she wasn't quite clear on stopping the arrears from piling up further.

No?

[socrateaser]

>So it seems she should file to modify support ASAP in SC,
>regardless of how the existing arrears are disposed.
>
>Else, the earliest retroactive date just gets pushed farther
>and farther into the future.
>
>Two separate issues now, is what it seems like the original
>poster should be examining... past and future (and the
>separation of those is going to be whatever date the
>modification is filed).
>
>I know she asked about laches regarding the past, but seems
>like she wasn't quite clear on stopping the arrears from
>piling up further.
>
>No?

Yes.

[olanna]

Dear Socrateaser,

My son had been living with his father until last June.  He is now 17, (was 16 when he arrived), and told his father he no longer wanted to live with him but wanted to come out and live with me. His father refused to agree to signing over legal custody but at the age of 17, I felt it ridiculous to go to court about it. Until, that is, SC came after me here in CA to collect child support they claim in arrears.  I once again, had my lawyer call my ex directly, and ask him to agree to sign off on things. It is at this point my lawyer suggested that I go after the support that was never paid to me when my son lived with me.

1. My ex never paid child support to me. The original order was in SC. My ex still resides in SC but my all my children from this marriage, (now two of the three are adults), live in CA. I also live in CA.

2. My ex's atty is attempting to prove that my ability to request back child support or current child support is "latched"..in other words, (and pardon me if this is rudamentary to you), beyond the time I can collect it.

3. My atty is telling me that child support is never "latched" and if SC will not allow me to open the case, I could very well open the case here in CA.

4. CA is attempting to enforce an order that originated in SC.  I have my day in court next Tuesday to open up my case against my ex here in CA.

5.  According to my records, my ex owes me $55K in arrears, not to mention any current support that should be paid to me since my son came to live with me.

What are your feelings on this issue being "latched'?

[socrateaser]

>1. My ex never paid child support to me. The original order
>was in SC. My ex still resides in SC but my all my children
>from this marriage, (now two of the three are adults), live in
>CA. I also live in CA.
>
>2. My ex's atty is attempting to prove that my ability to
>request back child support or current child support is
>"latched"..in other words, (and pardon me if this is
>rudamentary to you), beyond the time I can collect it.
>
>3. My atty is telling me that child support is never "latched"
>and if SC will not allow me to open the case, I could very
>well open the case here in CA.
>
>4. CA is attempting to enforce an order that originated in SC.
> I have my day in court next Tuesday to open up my case
>against my ex here in CA.
>
>5.  According to my records, my ex owes me $55K in arrears,
>not to mention any current support that should be paid to me
>since my son came to live with me.
>
>What are your feelings on this issue being "latched'?

Depends on SC law, unless your attorney can prove that CA has jurisdiction. If father never lived in CA, never did affirmative act to cause the children to be in CA, didn't conceive the kids in CA, then CA does not have jurisdiction. Otherwise, CA might have jurisdiction, if SC never ordered it.

Lots of ifs.

If CA has jurisdiction, then no laches on child support principal. Laches only on the interest.

Laches requires unreasonable delay and unfair prejudice. If you had no good reason to delay coming after the money, and you never tried to enforce your rights, then that would satisfy the first element. If your ex materially altered his position in any way that, but for your failure to prosecute for support, your ex would not have done, that might satisfy the second element. Courts are pretty loathe to foreclose a child support case on laches, unless the obligor parent actually paid money in lieu of support or actually provided substantial direct custody and care (food, clothing, shelter), during the period for which you seek support payments.

I can't say which forum state would be more open to a laches defense, but CA is definitely not laches friendly, because the family code expressly prohibits it except for interest on the support arrears.

[DecentDad]

Given that child has been in CA nearly a year, can she file for child support in CA for the remaining child due to de facto custody (and perhaps CA orders for child custody, based upon change of circumstance that child has been with her for a year)?

Then, at least she'd be able to get child support retroactive to filing date (in CA), which could offset monies due to the other parent.  And perhaps get child support orders to support child while full-time student, to boot?

Or if she can't do it in CA, can she go ahead and file the modification in SC, presuming SC operates in a similar fashion on determining child support (which of course I don't know)?

I'm just wondering if there's a way to start building Dad's own obligations on paying CS, if mom's can't be wiped out.

[socrateaser]

>Given that child has been in CA nearly a year, can she file
>for child support in CA for the remaining child due to de
>facto custody (and perhaps CA orders for child custody, based
>upon change of circumstance that child has been with her for a
>year)?
>
>Then, at least she'd be able to get child support retroactive
>to filing date (in CA), which could offset monies due to the
>other parent.  And perhaps get child support orders to support
>child while full-time student, to boot?
>
>Or if she can't do it in CA, can she go ahead and file the
>modification in SC, presuming SC operates in a similar fashion
>on determining child support (which of course I don't know)?
>
>I'm just wondering if there's a way to start building Dad's
>own obligations on paying CS, if mom's can't be wiped out.

Even if father acquiesced to the child's moving, there was already a support order in SC, and the father hasn't moved, therefore SC retains jurisdiction on the support issue, even if CA gets control of the custody issue.

The mom may be entitled to credit for support paid to the father during the time the son was in CA, but she cannot, under federal law, get retroactive support from the father for that same period, because she never filed a motion or OSC to modify support.

After she files, then she's entitled to support from the filing date forward.