Many people incorrectly believe that once a child support order is established, and that child support is not paid, there is no way out of an arrearage.  This is absolutely not true.  In many instances, a child will change their living circumstances from one parent to the other.  A lot of times, people will not go to a court to change any existing orders. 

A scenario that quite often occurs is a child is with a mother and the father has to pay a child support obligation.  Sometimes during the course of their lives, the child starts living with the father.  The father then stops paying child support. 

First, let me make it very, very clear that this is a terrible way to do things.  The father should absolutely get a court order to stop his child support obligation.  Many people believe that simply with a signed agreement or a notary statement, or something like that, a father in this scenario can just stop paying child support.  This is absolutely not true.  If there is a court order for the father to pay child support, the father must continue paying that child support until an actual court order relieves him, irrelevant of any circumstances that may have occurred. 

There is a defense to this scenario, however. Using the same fact pattern, a father who now has "actual" custody rather than "legal" custody stops paying the mother child support.  Then after several years, the mother gets mad at the father for some reason and then goes to court and wants all that money back despite the fact that she has not actually had the child in her possession.  Technically, the court could, and in many instances does, make the father pay all that money back even though he has been the one that the child has actually been living with.  Yes, this is incredibly unfair, but it is the law. 

Luckily, there are some cases that allow the judge discretion to not enforce those arrearages.  Many attorneys do not know about this.  The cases are along the lines of Stanjeski and Porro.  These cases, along with their progeny, stand for the proposition that there are reasons to sometimes not enforce on arrearage.  There are approximately three or four reasons in these cases.  One of them is an actual change in custody even though it is not by court order.  Be assured that this is not a guarantee, but at least a court has discretion to follow these cases and not hold a person in contempt for what is clearly an unfair situation. 

So, to sum up, if a child changes custody, you must get a new court order making it official.  There are, however, some defenses to a child support arrearage.

By Kenny Leigh