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June 8, 2006

Someone pointed out to me that my encomium on Tuesday to the troops who fought on D-Day had them landing in Normandy in 1956. Oh, well, 52 years ago, 62 years ago, whatever... One of the reasons I went to law school is they promised there wouldn't be any math.

The other day I highlighted the Supreme Court's decision in Smith v. Smith. It's not uncommon to have a paternity case where the father is sued years after the child is born, and since the mother is entitled to child support retroactive to the child's birth, the father can be hit with an arrearage in the tens of thousands of dollars. (And sometimes it's more than just a few years; in this case, CSEA sought to recover a 39-year-old arrearage.)


The legislature passed a law back in 2000 providing that the father didn't have to pay arrearages if the action wasn't filed until after the child was three, and the father had no reason to know about the child. In Smith, the Court held that the retroactive application of the statute was unconstitutional. Although in that case the order had been entered prior to the amendment of the statute, I pointed out that it seemed likely that retroactive application would be barred regardless of whether an order had been already entered, and that the statute only applies to children born after its passage.

One defense to arrearages in such cases is laches, as the Court recognized back in 1988 in Wright v. Oliver, 35 O.St.3d 10. Courts haven't eagerly embraced that theory, though, as the recent case of Walker v. Walker shows. Since one of the major requirements of laches is a showing of prejudice, the father claimed that he'd destroyed his financial records in the interim, and thus wasn't in a position to adequately contest the child support calculation. The court wasn't buying, and courts have pretty regularly rejected similar claims.

The one argument which the courts have been sympathetic to is the claim that the father was prejudiced by his lack of a role in the child's life. That argument works better if the father doesn't know of the child; if he does, the courts are just as likely to hold that by not asserting his rights to custody or visitation, he waived them, as they did here.

There have been others, though, that have been more sympathetic, and it's hard to argue with the point made by the 4th District in Park v. Ambrose, 85 O.App.3d 179 (1993):

Appellant has now been ordered to pay child support but received no benefit from being a father during his daughter's formative years. He had no right to visit her or spend time with her....  The non-custodial parent is more than a mere money machine. Each parent can contribute to the well-being of a child, regardless of which one has custody. The prejudice to the custodial parent who receives no support is obvious. The prejudice to the non-custodial parent who is denied any input to the child's rearing is just as obvious.

It's usually a tough sell, but with the right facts it can be made.

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