Can I Sue for Child Support?
Yes, you may be able to bring a child support case. If you are a parent with custody of the child, and the non-custodial parent refuses to help provide financial support, you can go to court and get a court order that requires that parent to make regularly scheduled child support payments. States generally follow similar child support enforcement processes.
In some cases (especially if the parents are on relatively good terms), you may not need a lawyer. But there are many issues that can arise, especially if a parent outright refuses to pay the full amount due, so you may want to consider at least consulting a lawyer.
What Is Child Support?
“Child support" is simply court-ordered payments for the support of a child. Under the law of virtually every state, children have the right to be supported by both parents. When parents do not live together, they can generally go to court and ask for an order setting a regularly scheduled amount for child support.
Child support typically is made up of three parts:
- Basic support (e.g., food, clothes, living expenses, etc.)
- Medical support (health care and dental expenses)
- Childcare support (money for childcare if a parent works or goes to school)
Who Can Ask for Child Support?
Typically, the parent who has physical custody can seek child support. But there are situations in which others may be able to get support as well:
- The person with custody of a child, such as a grandparent, can seek support from one or both parents
- The state (typically through a county attorney or a state agency) can seek a support order if either parent receives public assistance
Note that an adult child is not entitled to sue a parent for child support.
How Do You Go About Getting Child Support?
The way you get child support is defined by state law. Each state has its own process, but they generally follow similar steps. In some cases, you may be able to handle this on your own, but if your situation is complicated or if you don't get along with the other parent, an experienced family law attorney can help. Some attorneys focus specifically on child support cases.
The first step to getting child support is establishing paternity. Many men will acknowledge paternity, even if unmarried. If the mother is or was married at the time of the birth, states presume that the father is the spouse. But if there is a question or a dispute, a court may need to get involved and order DNA testing.
Get a Child Support Order
Once paternity is established, the second step is to go to family court and get a child support order. Many states allow you to start the process online.
All states have child support guidelines that are used to figure out the amount of child support based on who the child lives with and each parents' financial circumstances. They provide an outline of factors the court is supposed to consider when issuing an order. Some states even use a child support calculator. The focus generally is on the ability to pay and what is in the best interests of the child.
The parent who has to pay support is known as the “obligor." The parent who receives support is called the “obligee."
The order typically lasts until the child reaches the age of 18 or graduates high school. An order might be longer if the child has special needs or in a situation in which the parents agree to provide for college tuition and expenses. If living or financial circumstances change, a parent can ask a judge to modify the support order.
Enforce the Child Support Order
The third step is enforcing the order. Sometimes an obligor pays the obligee directly. But in many cases and states, the obligor's employer withholds payments from the obligor's paycheck. The employer then sends the amount to either the obligee or the state agency responsible for handling child support, who in turn makes payments directly to the obligee.
In a perfect world, that would be it. Everything would go smoothly. Alas, we do not live in a perfect world. Sometimes the obligor disappears. Sometimes the obligor gets a different job, and you can't find out where they work. Sometimes they simply refuse to pay. All sorts of obstacles can arise.
In such cases, the state child support services agency (which typically assigns you a caseworker) can help. They have a lot of resources and options (and you might also want to bring in an attorney).
Some of your and the state's options include:
- Tracking down the obligor with the help of other agencies (such as the Department of Motor Vehicles or the Federal Parent Locator Service)
- Suspending or revoking the obligor's driver's license
- Denying a passport
- Withholding tax refunds
- Reporting the obligor to credit bureaus
- Suspending or denying professional or required work licenses
- Seeking to hold the obligor in contempt of court (in some circumstances, they might get jail time).
Note that if the financial circumstances of the obligor change (e.g., they lose their job), they must go to court to get their payment obligation changed. If they don't, they still have to pay the full amount required under the child support order. Back child support is often referred to as “arrearages," and the parent who owes it is said to be in “arrears."
What About a Lawsuit?
Suppose the obligor owes you arrears. And the amount just keeps growing. Is your next step to sue for back child support?
A lawsuit is certainly an option. Child support arrears are a debt. You would be able to file a lawsuit to recover the debt. If you win, you will get a judgment. That doesn't mean you will get paid, however. You need to enforce the judgment.
That can be a difficult process, but the first goal is to locate the assets of the obligor (who is known as the “judgment debtor"). That can be money, personal property (like jewelry), or real estate. Once you have found the assets, you can take a number of steps, depending on the asset:
- Garnishment of the obligor's wages
- File liens against any land or other property (such as bank accounts)
The statute of limitations for a judgment depends on where you are, but in most places, it's 10 years. You may be able to get that extended by another 10 years by applying to a court for an extension of the judgment, giving you a total of 20 years to collect. But depending on where you are, that may be the total amount of time you have.
Note that unpaid child support cannot be discharged in bankruptcy.
Can I Sue the Obligor for Emotional Distress?
Collecting back child support can be a difficult, emotionally draining process. And sometimes the obligor can make you miserable. If the obligor's conduct is truly outrageous, and you suffer severe emotional distress, you may be able to sue the obligor for intentional infliction of emotional distress.
State laws differ, but you generally need to prove the following:
- Extreme and outrageous conduct by the obligor
- Intent by the obligor to cause you severe emotional distress
- You suffered severe emotional distress caused by the obligor's conduct
In some states, emotional distress alone is not enough. You may need to show that you suffered physically as well (e.g., insomnia, nausea, etc.). A personal injury attorney could help you decide whether you may have an emotional distress claim against the obligor.
A Lawyer May Be Able to Help You
Child support issues can be extraordinarily contentious and stressful. You may be able to handle aspects of it yourself. But not everyone gets along well enough with their co-parent to manage a difficult situation amicably for the entire time that their child is a kid.
If you find yourself in such a situation, you should consider getting legal help from a law firm that has lawyers experienced in handling child support matters. A good lawyer can help diffuse the situation, give you legal advice, guide you through the process, and, if need be, help you enforce a child support order or judgment.