Facts: Mother gave birth to Child in 1996. No father was listed on the birth certificate.

When Child was 17 years old, the State petitioned to establish paternity and require the father to provide health insurance for Child. DNA testing confirmed Father’s paternity a few months before Child’s 18th birthday. An order was entered, but it reserved the issue of child support.

Several months later, a hearing was held on Mother’s request to establish child support. The trial court determined that if the child-support award were made retroactive to Child’s birth, it would total over $132,000 without interest.

The trial court determined that the evidence supported a deviation from the child-support guidelines such that the award should not be made retroactive to Child’s birth, explaining:

Father had no knowledge of his parentage until [the] proceedings began and Mother, for reasons of her own, made a conscious effort to keep the child to herself. Ultimately, Mother chose not to take any steps to establish a legal relationship between the child and the father and specifically went out of her way to avoid establishing parentage. She testified that she had never indicated on any documents, including the child’s original birth certificate, that [Father] was the child’s father. She testified that she essentially maintained silence about [Father’s] parentage because she did not want to “rock the boat” in that she did not want Father to have contact or visitation with the child and that she did not want [Child] at Father’s home or involved in Father’s lifestyle. She testified that she did these things because she feared Father and what he might do to her and the child but she finally needed support enough to “list his name.” Because of Mother’s conduct[,] Father did not have the opportunity to bond with the child or establish a relationship with him. Additionally, the child’s own testimony indicates his own unwillingness to have contact or [a] relationship with his father because Father is perceived as being “the Bad Guy.” Mother has purposefully acted in a manner to prevent the formation of a father-son relationship. It would, therefore, be inequitable for the Court to reward her for such conduct.

Instead of making child support retroactive to Child’s birth in 18 years earlier, the trial court deviated from the child-support guidelines and only made the award retroactive to the date the petition to establish paternity was filed. Because of this, Father’s retroactive child-support obligation is a little over $7000 instead of over $132,000.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Once paternity is established, Tennessee law requires the court to establish child support. The child-support guidelines presume that child support should be awarded retroactively to the date of the child’s birth. Courts may, however, consider the following factors as a basis for deviating from the guidelines:

• the extent to which the father did not know, and could not have known, the existence of the child, the birth of the child, his possible parentage of the child, or the location of the child;
• 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
• 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.

When the presumption of a retroactive child-support award back to the date of the child’s birth is rebutted by clear and convincing evidence, the court must deviate from the child-support guidelines to reduce, in whole or in part, retroactive child support.

Tennessee law does not permit this deviation where there is clear and convincing evidence that:

• the father has a demonstrated history of violence or domestic violence toward the mother, the child’s caretaker, or the child;
• the child is the product of rape or incest of the mother by the father of the child;
• 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
• the father, or those acting on his behalf, have abused or neglected the child.

The Court agreed this is an appropriate case for a deviation from the child-support guidelines:

Mother does not cite evidence and, in our review of the record, we discern no proof that preponderates against the finding that Father did not know of his son prior to the paternity test in 2013.

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[Regarding domestic violence,] Mother states in her brief that Father “had been convicted of domestic assault against [her]”; the record, however, does not contain evidence of a conviction.

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The court examined the evidence and concluded that there was not clear and convincing evidence of domestic violence so as to preclude the deviation in child support. We have reviewed the record, including the statement of evidence, and have found no proof that clearly and convincingly establishes a demonstrated history of violence or domestic abuse of Father toward Mother or the child or that Mother or the child has a reasonable apprehension of harm from Father. The holding that deviation from the guidelines was appropriate is supported by the evidence and not contrary to law.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: As of July 1, 2017, Tennessee now imposes an five-year limit on retroactive child-support awards unless the trial court finds “good cause” to exceed the limit. This five-year limit only applies to lawsuits filed after July 1, so it wouldn’t have affected this case.

Carr v. Sutton (Tennessee Court of Appeals, Middle Section, June 26, 2017).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.