Virginia Cornwell is a Columbus Ohio Child Support Attorney and an Ohio State Bar Association Certified Family Relations Specialist.
- How far back can child support go in Ohio?
- I didn’t even know about this baby, and now, 10 years later she is going for child support all the way back to birth. Can she do that?
- In Ohio, is there a certain age where, if you haven’t already applied for child support ,you can’t get back support?
- Is there a statute of limitations on child support in Ohio?
The key to answering all of these questions is PATERNITY. Whether or not paternity has been established is the primary factor in determining how far back child support can go in Ohio. The secondary factor in determining how far back child support will go is whether you request child support through the child support enforcement agency or file a Complaint (or Motion) in court.
Ohio Revised Code 3111.05 (statute of limitations) says an action to determine the existence or nonexistence of the father and child relationship (paternity, or parentage) may not be brought later that five years after the child reaches the age of 18. That means that in Ohio paternity can be established up until the age of 23.
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What does paternity have to do with back (retroactive) child support? In Ohio, Paternity MUST be established before a court or a child support enforcement agency can make a child support order. In addition, in Ohio, a child support order can ONLY BE retroactive if made in conjunction with a determination of paternity.
Q. Who can file an action to establish paternity in Ohio?
A. According to Ohio Revised Code 3111.04, the following people can bring an action for paternity:
- the child or the child’s personal representative
- the child’s mother or her personal representative
- a man alleged or alleging himself to be the child’s father or his personal representative
- the child support enforcement agency of the county in which the child resides IF the child’s mother, father, or alleged father is a recipient of public assistance or of services under Title IV-D of the “Social Security Act,” 88 Stat. 2351 (1975), 42 U.S.C.A. 651, as amended. Public assistance, as used in this statute, means:
- Medicaid
- Ohio works first
- Disability financial assistance
Q. Once paternity is established, how does a court decide whether or not to order retroactive child support?
Ohio Revised Code 3111.13 controls this issue. That statute says that a court shall not order retroactive child support if both of the following apply:
- At the time of the initial filing of the paternity or parentage action the child was over three years of age.
- Prior to the initial filing of the paternity or parentage action, the alleged father had no knowledge and had no reason to have knowledge of his alleged paternity of the child. (the mother of the child may establish that the alleged father had or should have had knowledge of the paternity of the child by showing, by a preponderance of the evidence, that she performed a reasonable and documented effort to contact and notify the alleged father)
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Establishing Paternity as an Adult in Ohio
The issue of filing a paternity action in order to seek child support after a child turns 18 is a murky issue in Ohio, and the nuances of this issue are still being determined by Ohio courts.On the one hand, there is ORC 2105.26 which contemplates a situation where a father, an adult child (any age), and the adult child’s mother all file a joint declaration in probate court alleging that the man is the child’s father and requesting that the probate court issue an order declaring the man to be the adult child’s father. In that situation, the declaration must state
- that the adult child’s birth certificate does not designate anyone as the adult child’s father (copy of the birth certificate must be attached);
- the request for the order is made freely and voluntarily by all parties appearing before the court; and
- genetic test results show the man is the adult child’s father. (A copy of the DNA test results must be attached)
If the mother is deceased, or has been adjudicated to be incompetent, the alleged father and the adult child can file an action together, without the mother. The primary purpose for this type of action would be to formalize the father-child relationship and to establish rights of inheritance. In fact, Ohio Revised Code 2105.26 specifically states that when an action is brought this way, the adult child and the adult child’s mother shall not be awarded child support from the man for the time the adult child was a minor.
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On the other hand, you have Ohio Revised Code 3111.05. This statute of limitations, which we discussed at the beginning of this article, clearly states that a paternity action can be brought by the mother, father, child or CSEA Agency until the child’s 23rd birthday (five years after the child turns 18). Sounds simple enough right? Wrong. The tricky part is, that according to the Supreme Court of Ohio in Carnes v. Kemp,, 104 Ohio St. 3d 629, if you are seeking child support after the child has turned 18, apparently that can only be done when the adult child files to establish paternity AND seek child support.
The issue presented to the Ohio Supreme Court in Carnes was “Does a court have subject-matter jurisdiction to award retroactive child support payments in a paternity action initiated after the child has reached the age of majority?” The Supreme Court of Ohio answered the question with a YES. The Court noted that Ohio Revised Code 3111.13(C) states that a juvenile court has the authority to make a support order once a parentage determination is made, and that this means that 3111.05 “extends the length of time in which to bring a parentage action, and 3111.13(C) does not limit a juvenile court’s jurisdiction in a parentage action to award retroactive child support to minor children only. This means that an adult, emancipated child can seek retroactive child support until his or her 23rd birthday. If granted, the time period for retroactive child support could be from birth through age 18.
Okay, so, if you read the Carnes case, plus the statutes, you’d think that, since a mother can file an action for paternity until a child is age 23, that a mother would also be able to file for retroactive child support until the child turns 23, just like the adult child did in Carnes, right? Maybe not. In the case In re J.V., E.V. Appellant, E.V., the mother of J.V., filed for an action for retroactive child support. The court of appeals said that because the child was over 18 the court lacked subject matter jurisdiction to award child support to the mother. The court noted that unlike the Carnes v. Kemp case, no action for paternity had been filed, but said that even if the mother HAD filed an action for paternity, the Carnes case only held that an adult emancipated child could establish paternity and get 18 years back support after reaching the age of 18. The Court of Appeals in In re J.V. said that the Carnes case did NOT say that a mother had a right to file a claim for retroactive child support after the child turns 18, only that an adult child has the right. This interpretation of Carnes may not be completely consistent with the Supreme Court’s holding in Carnes, and it is very likely that there will be more decisions addressing this issue in the next few years.
CALL NOW (614) 225-9316 or contact us by e-mail.
So what’s the lesson here? Ohio fathers should establish paternity as early as possible. Because guess what – if the child waits until it is an adult to establish paternity and seek support – you may get a whopper child support award of 18 years, all at once.DISCLAIMER – Read it, it’s important!
For more information about MOTHER’S RIGHTS, see our page regarding MOTHER’S RIGHTS IN OHIO.
For more information about GRANDPARENT RIGHTS see our page regarding GRANDPARENTS RIGHTS IN OHIO.
For more information about obtaining CUSTODY, SHARED PARENTING, ORVISITATION in Ohio, see our post about OHIO CUSTODY.
For more information about DNA testing, see our post regarding DNA TESTING.
For more information about SHARED PARENTING, see our post regarding SHARED PARENTING IN OHIO.
For more information about the rights of UNMARRIED PARENTS OR NEVER MARRIED PARENTS, click the link.
C says
In 1973 we file for divorce and the father was ordered to pay child support. This is 2018 and the father has never paid any support. Am I still able to retrieve back child support. My son is now 48yrs old.
M says
My husband got a dissolution from his ex-wife in 1975. Child was born an issue of marriage in 1973. There was a sep agrmt with the dissolution that did, in fact, order c/support. My husband paid her every 2 weeks when visitation with the child was done. He had this old order. We had always been in “good standing” with both her and the child.
Now it’s 2015, and she is presenting this order to FCCSEA to collect monies from 1975 – 1991. The parties reconciled right after the dissolution and lived together until 1985. I have pulled discovery evidence that they purchased a home together in 1979, in 1985 he quit-claimed the property to her. So far, we have had an administrative hearing with child support and are still awaiting the decision. If it comes to it, we may need to hire a good attorney to act on our behalf. Could you please respond to this email. Note-hearing officer did mention something called a latches estoppel several times during the hearing. This order was never enforced through CSEA until all this time later. Can they even do this? My stepson is 42 years old and the ex has always known where we resided and he worked. He is nearing retirement age. The proof that he paid her after all this time is very hard to obtain. Could you give me your opinion. Thanks.