In legal actions to determine the paternity of a child conceived out of wedlock or to legitimate the parental relationship of such a child’s biological father, Georgia law expressly permits a court to award child support to the custodial parent upon a determination of paternity or entry of an order for legitimation.(1) But what about the past expenses incurred by a parent for a child’s medical care, childcare, food and clothing, and other necessities? Does a court have authority to award a parent back child support for expenses of child rearing incurred prior to entry of a paternity or legitimation order?
The short answer is yes. Georgia law provides that “[i]t is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until the child reaches the age of 18 or becomes emancipated, except to the extent that the duty of one parent is otherwise or further defined by court order.”(2) Additionally, “[w]henever a man has been adjudicated by a court of competent jurisdiction or an administrative tribunal as the father of a child born out of wedlock or whenever he has acknowledged paternity under oath in an administrative hearing, in court, or by verified writing, he shall be legally liable for the support of the child in the same manner as he would owe the duty of support if the child were his child born in wedlock.”(3) Georgia’s appellate courts have interpreted those statutory provisions as creating a joint obligation of support for both of a child’s parents, from the time of the child’s birth; and that obligation becomes enforceable upon adjudication of legitimation or paternity.(4)
Determination of the amount of back child support requires application of two principal rules. First, the parent seeking an award may not obtain more than the actual unreimbursed expenses of child rearing incurred by that parent over the course of the child’s life.(5) The court may award less than the total actual expenditures, but not more.(6) Although the parent seeking the award must prove past sums expended for a child, proof may consist of that parent’s testimony alone.(7)
Second, while actual expenditures represent the ceiling of an award of back child support, the portion of those expenditures awarded must derive from application of the statutory child support guidelines, including at minimum a consideration of the custodial parent’s income, the noncustodial parent’s income, and any other child support obligations of the parents.(8)
Interestingly, though legitimation and paternity actions usually feature back child support for the mothers of children born out of wedlock, a biological father designated as custodial parent also can obtain back child support from the noncustodial mother for at most the actual expenses he provided during the time the noncustodial mother failed to pay, upon proof of his expenses and application of the child support guidelines.(9)
(1) O.C.G.A. § 19-7-51; and O.C.G.A. § 19-7-22(f). (2) O.C.G.A. § 19-7-24. (3) O.C.G.A. § 19-11-14(a). (4) See Smith v. Carter, 305 Ga.App. 479, 699 S.E.2d 796, 797-798(2) (2010); and Weaver v. Chester, 195 Ga.App. 471, 471-472, 393 S.E.2d 715 (1990). (5) Weaver, supra, 195 Ga.App. at 473. See also Smith, supra, 305 Ga.App. at 798. (6) Smith, supra, 305 Ga.App. at 798. See also Dodson v. Walraven, 318 Ga.App. 586, 589-590(2), 734 S.E.2d 428 (2012); (7) Smith, supra, 305 Ga.App. at 797(1). (8) Medley v. Mosley, 334 Ga.App. 589, 594(3), 780 S.E.2d 31 (2015); Smith, supra, 699 S.E.2d at 798(2); and Weaver, supra, 195 Ga.App. at 471-472. (9) Medley, supra, 334 Ga.App. at 593-594(3).