Retroactive Child Support and Arrearages
In Nevada, both parents of a child have an obligation to provide for their minor child’s “necessary maintenance, health care, education and support.” NRS 125B.020(1). But what happens when a parent doesn’t pay for the child’s support? This article addresses the rights of various parties to retroactively collect child support, and/or to obtain arrearages for child support obligations, whether or not pursuant to a court order.
NRS 125B.070 governs the basic tenets of child support orders, including amount, determination of amount, duration, manner of payment and provisions for health care for the child. Child support is generally a presumed amount, depending on the non-custodial parent’s gross income and the number of children. NRS 125B.070. A court, however, may deviate from this presumed amount if it makes specific findings of fact regarding a number of factors. NRS 125B.090
Should a parent obtain a court order for child support, he or she is entitled to arrearages due to the other parent’s failure to pay. The supported parent may commence an action to collect arrearages of amounts ordered at any time; there is no time limitation. NRS 125B.050(3)(a).
However, if there is no child support order, the parent with physical custody may recover up to four years of support prior to bringing an action for support. NRS 125B.030 (when parents do not reside together, the parent with physical custody of the child can recover “a reasonable portion of the cost of care, support, education and maintenance” provided by the parent with physical custody). The Nevada Supreme Court confirmed this remedy, holding that “during a period of separation before divorce, a custodial parent may recover from a noncustodial parent support arrears based on the period of time the noncustodial parent was not supporting the children.”). The Court went on to note that “although the statute appears to apply to couples who have never been married, we reserve determination of that question for future consideration.” Mason is still good law. In the absence of a court order, the tolling of the four-year statute of limitations for the “bringing of an action for that support” runs from the date a written demand for child support is mailed to the non-custodial parent at his or her last known address. NRS 125B.050(1).
Non-parents having custody of a minor child can also recover retroactive child support, as well as arrearages. See NRS 125B.040. Specifically, the parental obligation for support of a child pursuant to NRS 125B.020(1) “creates a cause of action on behalf of the legal representatives of either parent, or on behalf of third persons or public agencies furnishing support or defraying the reasonable expenses thereof.” NRS 125B.040(1). Further, a court order for child support “follows the child” to whomever “has lawful physical custody of the child” and arrearages from a child support obligation “accrue” to the person whom had custody at the time the child support payment was due. NRS 125B.040(3), (9). Said arrearage remains due until it is paid in full. NRS 125B.040(9). Additionally, like child support as between parents without a court order, similarly here a non-parent with lawful physical custody of a child may recover up to four years of support from a non-supporting parent. NRS 125B.040(2).
Lastly, even if the child becomes emancipated, a parent shall continue to pay arrearages for failure to make payments pursuant to a child support order. NRS 125B.100.
As can be seen above, there are remedies for the collection of child support as between unmarried parents, married parents not residing together, divorced parents, and authorized non-parents such as legal representatives on behalf of parents, as well as third parties and agencies responsible for the care of minor children. Thankfully, these remedies can occur with or without a court order for support, given the proper procedures are followed. These remedies align with Nevada’s statutory obligation of parents for the care of their minor children, as well as its public policy in best ensuring that children are adequately cared for.
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