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Change of Custody & Retroactive Child Support

Normally, the law does not allow retroactive child support – a support modification is only prospective – i.e. it applies to payments due after the motion was modified, rather than to past support. C.R.S. 14-10-122(1)(a) provides:

“except as otherwise provided in subsection (5) of this section, the provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of changed circumstances that are substantial and continuing”

The one exception to the prohibition on retroactive child support, from subsection 5, was when there had previously been a voluntary change of physical care (i.e. “custody”). In that case, the law provided the court with discretion to modify support back to the change, but did not require it. In 2017, the retroactive child support provision changed, and the change of physical care provision in C.R.S. 14-10-122(5) now reads:

“when a court-ordered, voluntary, or mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified or terminated as of the date when physical care was changed. The provisions for the establishment of a child support order based on a court-ordered, voluntary, or mutually agreed upon change of physical care may also be entered retroactively to the date when the physical care was changed… The court shall not modify child support pursuant to this subsection (5) for any time more than five years prior to the filing of the motion to modify child support, unless the court finds that its application would be substantially inequitable, unjust, or inappropriate.” (Emphasis added).

5-Year Limit on Retroactive Child Support Modification Applies Retroactively

The 5-year limit on a retroactive child support modification in italics above was the central issue in a brand-new published decision from the Colorado Court of Appeals, Weekes.1In re: Marriage of Weekes, 2020 COA 16.

In Weekes, the parties’ daughter lived with the mother from divorce in 2001 until 2008, when she went to live with the father, remaining with him until her emancipation in 2011. The father did not seek child support at that time.

Retroactive child support

The mother subsequently requested judgment for $85,000 in unpaid child support, apparently covering the time the child lived with the father. However, she did not serve father at his correct address, and he did not learn of the judgment until 2016. He attempted unsuccessfully to get the court to set aside the judgment, and then in 2017, the father had retained counsel who filed a motion to modify the support retroactive to 2008.

The prior version of the statute in effect in 2008, when the daughter’s custody changed to father, did not include any express limitation on a parent’s ability to seek retroactive support. However, by 2017 when the father filed his motion to modify, the statute had changed to the language above, imposing a maximum 5-year retroactive period “unless the court finds that its application would be substantially inequitable, unjust, or inappropriate.”

The trial court denied the father’s motion to modify, finding that he was seeking a change beyond the 5-year limitation, and did not address whether the statutory exception that the 5-year limitation was unjust in that case. Father appealed, arguing that the 5-year limitation on retroactive child support did not itself apply retroactively. The appellate court rejected father’s arguments, holding that the amendment was intended to apply to any motion to modify child support filed after 2017, even if the change in custody occurred prior to that. ¶ 29.

The Court of Appeals similarly rejected father’s argument that retroactive application of the statute would violate the constitutional prohibition on retroactive legislation:

“Section 14-10-122(5) is remedial in nature and its limitation provision is simply a limitation on the remedy — regardless of when the change in custody occurred, relief is limited to the five years preceding the filing of the motion. The application of a limitation on a remedy to an existing claim for relief does not violate the prohibition against retroactive legislation.”

Weekes.2In re: Marriage of Weekes, 2020 COA 16, ¶ 35.

Hearing Needed on Whether Limitation is Unjust

However, the father prevailed on his final argument – the trial court improperly dismissed his motion without setting a hearing on whether it would be unjust to apply the 5-year limitation on retroactive child support. The family law judge should have considered the facts at a hearing on whether the father’s delay was justified in view of his not knowing of the mother’s judgment.

For more information on modifying child support, see our Child Support Modification article in the Colorado Family Law Guide.

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