I JUST FOUND OUT I'M THE FATHER OF A 4 YEAR OLD CHILD. DO I OWE 4 YEARS OF CHILD SUPPORT IN TENNESSEE?

This is a question I'm asked often.  And the answer is: it depends.  Men sometimes become aware that they are the biological fathers of children years after the child's birth.  This might occur for a variety of reasons, such as:

  1.  the mother thought another man was the father until a paternity test proved otherwise;
  2.  the mother didn't want the biological father involved in the child's life initially.

What about the case where mother told father about child at some point?  Why hasn't the biological father established paternity?  I see so many different answers to this question in my practice.  Here are some common ones:

  1.   Father didn't want to be responsible for child support.
  2.   Father didn't believe mother when she told him he was the father.
  3.   Father was incarcerated.

With all these potential competing scenarios, the State of Tennessee has wisely opted for protecting the best interest of the child by requiring fathers to pay retroactive child support from the date of the child's birth.  This is the default position of the Tennessee Child Support Guidelines.  However, Tennessee Code Annotated § 36-2-311(a)(11) allows the court to consider evidence as to why the Child Support Guidelines shouldn't be applied. 

Tenn. Code Ann. § 36-2-311(a)(11) gives us the the guidance we need to determine if and when a biological father should have to pay retroactive child support.  When attempting to answer this question the court's main inquiry will revolve around the following three questions:

  1. The extent to which the father did not know, and could not have known, of the existence of the child, the birth of the child, his possible parentage of the child or the location of the child;
  2. The extent to which the mother intentionally, and without good cause, failed or refused to notify the father of the existence of the child, the birth of the child, the father's possible parentage of the child or the location of the child; and
  3. The attempts, if any, by the child's mother or caretaker to notify the father of the mother's pregnancy, or the existence of the child, the father's possible parentage or the location of the child;

Sounds pretty straitforward doesn't it?  I mean, if the father takes the witness stand and testifies that he had no idea until a couple of months ago that the child existed, the court will probably rule in his favor, right?  Maybe.  What I see often is a dispute about whether the father knew of the child. For instance: the mother has what she believes is evidence that the father knew or should have known of the child including her alleged efforts to inform him. The father vehemently denies having any information concerning the child and claims that mother has known how to contact him the whole time, but she did not.  You can see how this becomes very complicated in terms of evidence and presentation in court.  If we are talking about $40,000 in retroactive child support, the incentive for a party to be dishonest is great. I recommend speaking to an attorney as soon as you find out that there is an action for parentage against you or before filing an action for parentage against a putative father.  An experienced attorney will be able to assess and evaluate the evidence in the case and form an opinion about what a court is likely to do.

For your convenience, Tennessee Code Annotated § 36-2-311(a)(11) is quoted below: 

(11) (A) Determination of child support pursuant to chapter 5 of this title. When making retroactive support awards pursuant to the child support guidelines established pursuant to this subsection (a), the court shall consider the following factors as a basis for deviation from the presumption in the child support guidelines that child and medical support for the benefit of the child shall be awarded retroactively to the date of the child's birth:

(i) The extent to which the father did not know, and could not have known, of the existence of the child, the birth of the child, his possible parentage of the child or the location of the child;

(ii) The extent to which the mother intentionally, and without good cause, failed or refused to notify the father of the existence of the child, the birth of the child, the father's possible parentage of the child or the location of the child; and

(iii) The attempts, if any, by the child's mother or caretaker to notify the father of the mother's pregnancy, or the existence of the child, the father's possible parentage or the location of the child;

(B) In cases in which the presumption of the application of the guidelines is rebutted by clear and convincing evidence, the court shall deviate from the child support guidelines to reduce, in whole or in part, any retroactive support. The court must make a written finding that application of the guidelines would be unjust or inappropriate in order to provide for the best interests of the child or the equity between the parties;

(C) Deviations shall not be granted in circumstances where, based upon clear and convincing evidence:

(i) The father has a demonstrated history of violence or domestic violence toward the mother, the child's caretaker or the child;

(ii) The child is the product of rape or incest of the mother by the father of the child;

(iii) The mother or caretaker of the child, or the child has a reasonable apprehension of harm from the father or those acting on his behalf toward the mother, the child's caretaker or the child; or

(iv) The father or those acting on his behalf, have abused or neglected the child;

(D) Nothing in this subdivision (a)(11) shall limit the right of the state of Tennessee to recover from the father expenditures made by the state for the benefit of the child, or the right, or obligation, of the Title IV-D child support agency to pursue retroactive support for the custodial parent or caretaker of the child where appropriate;

(E) Any amounts of retroactive support ordered that have been assigned to the state pursuant to § 71-3-124 shall be subject to the child support distribution requirements of 42 U.S.C. § 657. In such cases, the court order shall contain any language necessary to allow the state to recover the assigned support amounts;

(F) In making any deviations from awarding retroactive support, the court shall make written findings of fact and conclusions of law to support the basis for the deviation, and shall include in the order the total amount of retroactive support that would have been paid retroactively to the birth of the child, had a deviation not been made by the court;

(G) (i) In any action for retroactive child support filed on or after July 1, 2017, retroactive child support shall not be awarded for a period of more than five (5) years from the date the action for support is filed unless the court determines, for good cause shown, that a different award of retroactive child support is in the interest of justice. The burden to show that a longer time period of retroactive support is in the interest of justice is on the custodial parent. Good cause includes, but is not limited to, the following:

(a) The noncustodial parent deliberately avoided service or knowingly impeded or delayed the imposition of a support obligation;

(b) The noncustodial parent used threats, intimidation, or force to prevent or delay the imposition of a support obligation; or

(c) The custodial parent reasonably feared that the establishment of parentage would result in domestic abuse, as defined in § 36-3-601;

(ii) The court may award retroactive child support for less than the five-year-period required by subdivision (a)(11)(i) if the court determines, for good cause shown, that a different award of retroactive child support is in the interest of justice. The burden to show that a shorter time period of retroactive support is in the interest of justice is on the noncustodial parent;

(iii) Upon a finding of good cause in accordance with this subdivision (a)(11)(G), the court may order retroactive support from the date the court determines to be equitable and just;

(iv) The presumption that child support for the benefit of the child be awarded retroactively to the date of the child's birth contained in the child support guidelines shall not apply to any action in which this subdivision (a)(11)(G) is applicable;

(v) Nothing in this subdivision (a)(11)(G) limits any claim for retroactive child support owed to the department of human services;

(B) In cases in which the presumption of the application of the guidelines is rebutted by clear and convincing evidence, the court shall deviate from the child support guidelines to reduce, in whole or in part, any retroactive support. The court must make a written finding that application of the guidelines would be unjust or inappropriate in order to provide for the best interests of the child or the equity between the parties;

(C) Deviations shall not be granted in circumstances where, based upon clear and convincing evidence:

(i) The father has a demonstrated history of violence or domestic violence toward the mother, the child's caretaker or the child;

(ii) The child is the product of rape or incest of the mother by the father of the child;

(iii) The mother or caretaker of the child, or the child has a reasonable apprehension of harm from the father or those acting on his behalf toward the mother, the child's caretaker or the child; or

(iv) The father or those acting on his behalf, have abused or neglected the child;

(D) Nothing in this subdivision (a)(11) shall limit the right of the state of Tennessee to recover from the father expenditures made by the state for the benefit of the child, or the right, or obligation, of the Title IV-D child support agency to pursue retroactive support for the custodial parent or caretaker of the child where appropriate;

(E) Any amounts of retroactive support ordered that have been assigned to the state pursuant to § 71-3-124 shall be subject to the child support distribution requirements of 42 U.S.C. § 657. In such cases, the court order shall contain any language necessary to allow the state to recover the assigned support amounts;

(F) In making any deviations from awarding retroactive support, the court shall make written findings of fact and conclusions of law to support the basis for the deviation, and shall include in the order the total amount of retroactive support that would have been paid retroactively to the birth of the child, had a deviation not been made by the court;

(G) (i) In any action for retroactive child support filed on or after July 1, 2017, retroactive child support shall not be awarded for a period of more than five (5) years from the date the action for support is filed unless the court determines, for good cause shown, that a different award of retroactive child support is in the interest of justice. The burden to show that a longer time period of retroactive support is in the interest of justice is on the custodial parent. Good cause includes, but is not limited to, the following:

(a) The noncustodial parent deliberately avoided service or knowingly impeded or delayed the imposition of a support obligation;

(b) The noncustodial parent used threats, intimidation, or force to prevent or delay the imposition of a support obligation; or

(c) The custodial parent reasonably feared that the establishment of parentage would result in domestic abuse, as defined in § 36-3-601;

(ii) The court may award retroactive child support for less than the five-year-period required by subdivision (a)(11)(i) if the court determines, for good cause shown, that a different award of retroactive child support is in the interest of justice. The burden to show that a shorter time period of retroactive support is in the interest of justice is on the noncustodial parent;

(iii) Upon a finding of good cause in accordance with this subdivision (a)(11)(G), the court may order retroactive support from the date the court determines to be equitable and just;

(iv) The presumption that child support for the benefit of the child be awarded retroactively to the date of the child's birth contained in the child support guidelines shall not apply to any action in which this subdivision (a)(11)(G) is applicable;

(v) Nothing in this subdivision (a)(11)(G) limits any claim for retroactive child support owed to the department of human services;


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