The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

Married But Separated: Custodial Parents Can Seek Retroactive Child Support Under the Parentage Act
By Erica Bertini

Do custodial parents, who are separated, but still married, have the opportunity to seek current child support, as well as retroactive child support, under the Illinois Parentage Act of 1984 (hereinafter “Parentage Act”)? The answer is yes - the Parentage Act gives separated parties standing to file for child support. If clients for whatever reason do not file for divorce, so long as the parties live separately, a custodial parent can seek both current child support and child support retroactive to the date of filing of the petition under the Parentage Act.[1] The five factors set forth under Section 14 of the Parentage Act[2] allow for an award of retroactive child support for any custodial parent, subject to the Court’s discretion. After child support is established in a parentage action, any subsequent divorce action must deal with the previous order for support in the parentage case or risk losing the benefit of that order. If no child support order was entered in the parentage action and a divorce is subsequently filed, the order consolidating the parentage case and the divorce case must reference the previously filed parentage case by case name and number to preserve the opportunity to request retroactive support pursuant to the previous parentage action.

Any Parent May File, Regardless of Marital Status. The Parentage Act does not expressly state a separated, but still married custodial parent may file for retroactive child support. Nevertheless, a reading of the relevant sections of the Statute supports the contention that retroactive child support may be awarded to such parties. Section three of the Parentage Act states, “the parent and child relationship, including support obligations, extends equally to every child and to every parent, regardless of the martial status of the parents.”[3] Therefore, the marital status of a parent is inconsequential when the Court considers whether that parent has appropriately filed an action under the Parentage Act.[4] The common misunderstanding is that only parents who were never married can file for child support under the Parentage Act. However, §3 of the Parentage Act makes clear that martial status does not determine whether or not a parent has an obligation to support their child.
The Statute describes what party may bring an action under the Parentage Act among others, such an action may be brought by a man presumed to be a father of the child. Under §7 of the Parentage Act, “An action to determine the existence of a father and child relationship, whether or not such a relationship is already presumed under §5 of this Act, may be brought by the child, the mother…or a man presumed or alleging himself to be the father of the child or expected child.”[5] The next inquiry is who is a presumed father under the Parentage Act and whether the Parentage Act supports the marriage presumption. The assumptions under §5 of the Parentage Act state, “A man is presumed to be the natural father of the child if: (1) he and the child’s natural mother are or have been married to each other, even though the marriage is or could be declared invalid, and the child is born or conceived during such marriage…(b) A presumption…may be rebutted only by clear and convincing evidence….”[6] Therefore, the Parentage Act gives married parties standing to file. Since either parent could conceivably be the custodial parent during a separation period, the Act sets forth each parent’s ability to seek support under the Parentage Act.
Child Support Retroactive to Date of Separation. The Court has the power under the Parentage Act to award child support back to the date of service of summons and prior, if the petitioner meets the requirements set forth in the Parentage Act. A father or mother of a child, regardless of marital status, has standing to file a petition under the Parentage Act. Under the Parentage Act, that same parent may also be able to seek retroactive support. As set forth in Section §14(b) of the Parentage Act states as follows: “The Court shall order all child support payments, determined in accordance with such guidelines, to commence with the date the summons is served…The Court may order any child support payments to be made for a period prior to the commencement of the action. In determining whether and the extent to which such payments shall be made for any prior period the Court shall consider all relevant facts, including the factors for determining the amount of support specified in the Illinois Marriage and Dissolution of Marriage Act”.[7]
The Court must award child support back to the date of service of the summons under the Parentage Act. However, whether the Court will award support prior to the date of service of the summons is discretionary. When determining the facts in support or against the award of retroactive support prior to date of service, the Court will look at the equitable factors laid out in the statute.[8]
The first equitable factor the Court will look to is “the father’s prior knowledge of the fact and circumstances of the child’s birth.”[9] The Court may address this factor in several different instances. For example, if the parties are married and the child was born while the parties were still residing together, the custodial parent may be able to establish this factor by testifying as to the circumstances surrounding the birth, whether or not the father was in the hospital for the birth, or if the father was not present for the birth, how he was informed of the birth. If the parties were separated when the child was born, the Court may address this factor by looking to whether the mother can establish the facts and circumstances surrounding how she notified the father, if the father was not present for the birth.
The next factor the Court considers is “the father’s prior willingness or refusal to help raise or support the child.”[10] This may be the most important factor to establish for a parent seeking retroactive support if the parties are still married but separated, because there would be presumably no refusal to support a child if parents are still married and living together. If parents are still living together, then it may be very difficult for the custodial parent to establish a need for child support under this factor. However, a custodial parent may be able to use the date of separation and the circumstances surrounding such separation to show the Court a non-custodial parent’s refusal to help support the child. The custodial parent may also present evidence to support this factor such as information surrounding requests to the non-custodial parent for assistance in raising or supporting the child, how often he or she asked, for what kind of assistance, and whether the non-custodial parent had either helped or refused to do so. The more information the custodial parent can provide with regard to this element the more likely it is that he or she will be awarded retroactive child support prior to the date of service.
The third factor that the Court must consider is “the extent to which the mother or the public agency bringing the action previously informed the father of the child’s needs or attempted to seek or require his help in raising or supporting the child.”[11] Facts to support this factor are more readily available when parties are still married and at one time lived together after the child was born because that puts the non-custodial parent on notice of the child’s needs by mere fact of living with the child for a period of time after birth. If the parties separated before the child was born, the custodial parent has to prove that the non-custodial parent knew what the needs of the child were. If a parent is not living with or visiting with a child, then it is harder to prove whether or not that parent is aware of what the possible needs of a child of that age are. The custodial parent may be able to present facts to support this factor by showing the Court they asked the non-custodial parent for specific needs of the child, what those requests were, the frequency of the requests, and whether the needs of the child were made aware to the non-custodial parent. The facts presented under this factor are similar to those presented under the second factor.
The fourth factor the Court must consider is “the reasons the mother or the public agency did not file the action earlier…”[12] With regard to this factor, the custodial parent must prove timely filing.[13] Where the custodial parent waited to file the request for child support, the Court must be satisfied that there were good reasons for such a wait. A request for retroactive support from the date of service under the Parentage Act is discretionary, so it is to the custodial parent’s benefit to present as many facts as possible to prove that he or she filed their request as soon as possible. For example, if a custodial parent testifies that he or she sought legal counsel and filed the action within six months of the parties’ separation, that parent has come closer to meeting this factor than someone who waited five years after the date of separation to file for child support under the Parentage Act.
The final factor the Court will consider when determining retroactive child support is “the extent to which the father would be prejudiced by the delay in bringing the action.”[14] If the first four factors are thoroughly and strategically presented, then ideally the fifth factor will be met because the custodial parent would already have proven how they were diligent in asking the non-custodial parent for assistance in raising and supporting the child, the non-custodial parent would have been aware of the child’s needs, and the custodial parent would have been diligent in filing the petition. These facts, taken as a whole, demonstrate that the non-custodial parent knew of his or her obligation before the petition was filed.

If the Parties Eventually Decide to Divorce, the Judgment of Dissolution Must Reference the Parentage Action and Child Support Order. One of the biggest mistakes an attorney can make is to only look to present day litigation issues. The attorney must learn the history of the child support issue to make sure the client receives the benefit he or she is entitled to under the law. Oftentimes, parties fail to mention to their attorney the existence of a previous child support order. If the attorney then files a divorce action without mentioning the previous child support order, his or her client could be prejudiced and lose any monies awarded to them under the previous parentage action. It is therefore the attorney’s responsibility to exercise due diligence to inquire whether there is a previous parentage action. There are two situations that arise as a result of the failure to account for a previous parentage action.

The first such situation arises when there is a previous child support order in a parentage case, a divorce action is filed, the cases are consolidated and the consolidation order makes no mention of the previous child support order in the parentage case. If retroactive support has not been resolved in the parentage case before it is consolidated with the dissolution action, then it is essential that the consolidation order reserve the issues of retroactive support pursuant to the parentage case. The consolidation order must refer to the parentage case number.[15] Retroactive child support under the Illinois Marriage and Dissolution of Marriage Act, is within the discretionary power of the trial court if such an allowance is deemed fit, reasonable, and just.[16] If the consolidation order properly refers to the previous parentage action, the Court now has the power under the Parentage Act to grant the custodial parent retroactive support back to the date of service of the summons in the parentage action. The Court in the dissolution action would then also have discretion to order child support prior to the date of service of the summons in the parentage action. An attorney who fails to refer in the dissolution action to the previous parentage case could lose months, maybe years of child support for their client.

The second such situation arises when the parties have a previous parentage case where all economic issues, including current and retroactive child support, were resolved, and then a divorce case is filed at a later date. In this situation, when the attorney consolidates the cases, then the consolidation order must reference the current child support order and retroactive support judgment under the previously filed parentage case. When the judgment for dissolution is eventually entered, it is arguable that it supersedes the previous child support judgment and orders because the judgment for dissolution is an all-encompassing judgment dealing with all pending issues. It is the author’s opinion that when a judgment for dissolution is entered and it makes no mention of the previous orders for current and retroactive child support entered in the parentage case, then it is as if the child support orders under the parentage case never existed.[17] The unfortunate result is that the custodial parent loses the retroactive support judgment and any money that accrued unpaid under that now “non-existent” child support order in the parentage case. If the attorney fails to deal with a child-support order from a previous parentage case, his or her client's ability to enforce that order and collect any money unpaid pursuant to that order could be lost.

Conclusion. In summary, a parent still married but separated has standing to file for child support under the Parentage Act. To receive child support retroactive prior to the date of service of the summons in the parentage action, that parent must provide enough facts to satisfy each of the five factors under §14 of the Parentage Act. If that parent subsequently files for divorce, the divorce must reference the previous order for child support entered in the parentage action. If a judgment is entered in the divorce action that does not reference any parentage case or any previous child support order, then that judgment could wipe out any child support arrearage owed to the custodial parent under the previous parentage order.

[1]   This article does not address the issues of determination of the custodial parent, nor does it address the issues of child support in the context of case law interpreting the Illinois Marriage and Dissolution of Marriage Act.
[2]   750 ILCS 45/14 (West 2009).
[3]   750 ILCS 45/3 (West 2009).
[4]   Parties may also seek relief under §505 of the Illinois Marriage and Dissolution of Marriage Act through a Petition for Custody which also requests child support pursuant with the guidelines. 750 ILCS 5/505(a)(2)(West 2009).
[5]   750 ILCS 45/7(a)(West 2009).
[6]   750 ILCS 45/5(a)-(b)(West 2009).
[7]   750 ILCS 45/14(b)(West 2009)(emphasis added).
[8]   See Gill v. Gill, 8 Ill. App. 3d 625, 290 N.E.2d 897, 900-01 (Ill. App. Ct. 1972)(awarding retroactive child support because father had a duty to support his child in the years in question when mother could not locate him to bring him personally before the jurisdiction of the trial court. Father made no attempt to satisfy his obligation to support his child and the court awarded a judgment calculated based upon father’s salary over the period according to his testimony.).
[9]   750 ILCS 45/14(b)(1)(West 2009).
[10]  750 ILCS 45/14(b)(2)(West 2009).
[11]  750 ILCS 45/14(b)(3)(West 2009).
[12]  750 ILCS 45/14(b)(4)(West 2009).
[13]  750 ILCS 45/14(b)(4)(West 2009).
[14]  750 ILCS 45/14(b)(5)(West 2009).
[15] A suggestion for wording is, “The Petitioner’s right to child Support and retroactive child support are reserved pursuant to case 12F000 filed on 1/10/12.” This is a situation where the divorce attorneys intend to re-set child support in the divorce decree. If there is an intention to keep child support the same, but set the retroactive support, then adding the wording to the consolidation order, “Child support shall continue to charge at $90.00 per week pursuant to case 12F000 and order entered on 1/10/12.” If there is a clerk’s account associated with the parentage case, then it would also need to be referenced in the wording in the consolidation order.
[16] In re the Marriage of Rogliano, 198 Ill.App.3d 404, 410 (5th Dist. 1990).
[17] Suggested wording could be, “Child support is set at $90.00 per week pursuant to prior order in case 12F000 in account 12CS001, through the court order entered on 1/10/10. Said child support will continue to be paid through 12CS001. Retroactive support is also set per prior judgment in case 12F000 at $2,500.00 per court order of the same date. Arrearages as of 1/1/12 of $5,000.00 and payments towards such arrearages are reserved at this time [or you can set a payment plan here too].” Simply just mentioning the child support amount, if it is the same amount in the parentage case, is not enough to reserve the accrued, unpaid child support under the parentage case, until the divorce judgment is entered. Failure to reference an actual case number and date of an order arguably wipes out any monies unpaid and accrued under that original parentage order. If there is a clerk’s account associated with the previous order for support in the parentage action then it would also need to be referenced appropriately in the consolidation order.
Erica Bertini is an Assistant State’s Attorney in the Traffic Division in the DuPage County State’s Attorney’s Office. She is a former Assistant State’s Attorney in the Child Support Enforcement Division. She earned her J.D. in 2009 from The John Marshall Law School. Prior to that, she graduated from the University of Iowa in 2005 with a Bachelor in Business Administration in Accounting and Finance. She is active in the DuPage County Bar Association and serves on the board of The DuPage Bar Brief. This information in this article is presented by the author and does not reflect the opinion of the Department of Healthcare and Family Services and the DuPage County State’s Attorney’s Office.
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