QUESTION: Can I sue my child’s mother for the child support that was deducted from my pay after our child started living with me, in my home?
ANSWER: Utah Code § 78B-12-108 provides (in part), that except in cases of joint physical custody and split custody, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay support, without the need to modify the order for the parent who has physical custody of the child.
Here is the text of the entire code section:
§ 78B-12-108. Support follows the child.
(1) Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child.
(2) Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with Sections 78B-12-205 and 78B-12-212, without the need to modify the order for:
(a) the parent who has physical custody of the child;
(b) a relative to whom physical custody of the child has been voluntarily given; or
(c) the state when the child is residing outside of the home in the protective custody, temporary custody, or custody or care of the state or a state-licensed facility for at least 30 days.
Unfortunately, though the Code would appear to provide that you don’t have to go back to court to get the child support order modified, unless and until you do go back to court to seek the modification of the order the court will not know of the change in custody and the existing child support order will remain in full force and effect. So you will need to go to the court (or, if ORS is collecting child support, in some situations you can go to ORS) to notify it of the change in custody and to ask the court (or ORS, if applicable) to modify the support order.
Whether you need to move (file a motion) to modify or sue (file a petition) to modify is not clear to me, so when in doubt, I file a petition, then file a motion and see which one the court deems appropriate.
And bear in mind that if you move/petition to modify child support by claiming there’s been a de facto change in custody (being in effect though not legally recognized constituted or authorized), then your ex will likely retaliate respond by accusing you of custodial interference, kidnapping, and/or non-compliance with the court’s child custody order.
Otherwise stated: get a good lawyer, if you want to undertake this.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Utah Code § 78B-12-112. Payment under child support order — Judgment.
(3) Each payment or installment of child or spousal support under any support order, as defined by Section 78B-12-102, is, on and after the date it is due:
(a) a judgment with the same attributes and effect of any judgment of a district court, except as provided in Subsection (4);
(b) entitled, as a judgment, to full faith and credit in this and in any other jurisdiction; and
(c) not subject to retroactive modification by this or any other jurisdiction, except as provided in Subsection
(4) A child or spousal support payment under a support order may be modified with respect to any period during which a modification is pending, but only from the date of service of the pleading on the obligee, if the obligor is the petitioner, or on the obligor, if the obligee is the petitioner. If the tribunal orders that the support should be modified, the effective date of the modification shall be the month following service on the parent whose support is affected. Once the tribunal determines that a modification is appropriate, the tribunal shall order a judgment to be entered for any difference in the original order and the modified amount for the period from the service of the pleading until the final order of modification is entered.