Back Child Support Filed Nine Years After the Relationship

Attorney Answer

You are almost certainly not looking at nine years of back support. New Mexico caps retroactive child support at three years unless she can make a substantial showing that the case could not have been brought sooner. And no — signing away your rights will not end the obligation.

The controlling provision is NMSA 1978 § 40-11A-636(G). It provides that the court "shall order child support retroactive to the date of the child's birth, but not to exceed three years unless there is a substantial showing that paternity could not have been established and an action for child support could not have been brought within three years of the child's birth." In deciding whether and how far back to order retroactive support, the court must consider two things: whether the alleged or presumed father absconded or could not be located, and whether equitable defenses apply. The amount itself is set under the guidelines in NMSA 1978 § 40-4-11.1.

Read that carefully, because it tells you what to prove. If you stayed in the area, kept the same phone number, worked openly, and were findable the whole time, that is evidence against the exception and in favor of the three-year cap.

One case cuts against a defense you might be tempted to raise. In Human Services Department, Child Support Enforcement Division v. Toney, 444 P.3d 1074 (N.M. Ct. App. 2019), a father argued that the retroactive support provision could not reach him because he had acknowledged paternity informally years before any petition was filed. The Court of Appeals rejected that reading and affirmed retroactive support running back to the parents' separation. Because NMSA 1978 § 40-11A-305(A) makes a valid acknowledgment of paternity the equivalent of a court adjudication, acknowledged and adjudicated fathers are treated alike. The court did confirm that retroactive support is decided case by case and that a father may raise equitable defenses, which the district court has to actually consider. So if you ever signed an acknowledgment or went on a birth certificate, Toney is a problem for you, not a help.

On giving up your rights: parental rights in New Mexico are relinquished or terminated through a formal court proceeding under the Adoption Act, NMSA 1978 §§ 32A-5-1 et seq., or through an abuse and neglect case. You cannot end them, or the support attached to them, by declaring an intention to. New Mexico's Court of Appeals held in Aeda v. Aeda, 2013-NMCA-095, 310 P.3d 646, that a termination of parental rights severs the parent-child relationship completely, including the support obligation imposed by a divorce decree, and it reversed and dismissed the enforcement matter. But that was a case where a court had already terminated the father's rights in a contested proceeding the mother brought. It does not let a parent end support by offering to relinquish, courts do not terminate parental rights so that a parent can escape support, and the opinion says nothing about arrearages that accrued before termination. It was also a decision of first impression that no later New Mexico case has applied.

What you can do

1. Do not ignore the papers. If you do not respond by the date printed on them, an order can be entered against you by default, and undoing a default is far harder than answering. 2. Find out first whether you are already legally the father. Did you ever sign an acknowledgment of paternity, or appear on a birth certificate? Under Toney that is treated like a court adjudication. 3. If you have not been adjudicated the father and never signed an acknowledgment, request genetic testing in your written response. Do this in the response — not later. 4. If you are the father, raise the three-year cap in NMSA 1978 § 40-11A-636(G) explicitly and in writing. Do not assume the court will apply it for you. 5. Put in evidence that you were locatable the whole time: same town, same employer, same phone, tax records, a driver's license history. That goes straight to the "absconded or could not be located" factor the statute directs the court to weigh. 6. Raise equitable defenses if you have them, and identify them specifically. Toney confirms the court must actually consider them. 7. Do not offer to relinquish your rights as a bargaining chip. It does not work, and it will not read well to the judge who decides the equitable side of your case. 8. Bring pay records and tax returns. The amount is calculated from income under NMSA 1978 § 40-4-11.1, and a number set without your real income will be a number you have to live with.

⏱ Time limits apply. NMSA 1978 § 40-11A-636(G) is itself a limit on how far back support can reach — three years from birth, unless the exception is established — and your written response to the petition has its own deadline printed on the papers you were served with. Which of those applies to you, and whether the exception can be met on your facts, depends on the specific dates and circumstances of your case.

Even if you are handling this yourself, you would be best served by a brief phone consultation with a local New Mexico attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court and judge actually handle this — is worth more than any general guidance, including this page.