(c) Ronald W. Nelson
Lenexa, Kansas  

I. The Time Within Which an Action Can Be Filed to Establish Parentage.

Although some states’ statutes provide a specific limitation on the time within which a child or another person on behalf of the child can file an action to establish paternity for all purposes, the vast majority specifically exclude from the limitation an action for the purposes merely of establishing the fact of parentage (without any concomitant request or ability to request child support or reimbursement).

Until the late 1960s, states placed severe limitations on the ability of children to establish a paternity relationship in those situations in which no marriage existed between the child’s mother and father. The primary rationales for these statutes were the punishment of immoral behavior by the parents and the sacrosanct nature of procreation within the marital relationship. Starting in 1968, however, the United States Supreme Court decided a series of cases and found that many of those existing statutes unconstitutionally discriminated against children born outside a marital relationship. The Court determined that the Equal Protection Clause mandated that states treat those children no differently than children of a marital relationship. Accordingly, many of the statutory schemes that had been set up to deter birth outside the marriage by denying the child of that non-marital relationship the same rights as those enjoyed by children of a marital relationship were struck down as unconstitutional.

The lack of logical justification for those statutes and the failure of them to pass constitutional muster was expressed by the Supreme Court in Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S. Ct. 1400, 1406-07 (1972):

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual – as well as an unjust – way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where – as in this case – the classification is justified by no legitimate state interest, compelling or otherwise.

Accordingly, every state now provides either by statute or case law that a child has an extended time in order to establish parentage and that the failure of the child’s mere fact that either by statute or case. A majority of the States that the child has at least one year past attaining the age of majority to file an action to establish parentage; a significant minority of States provide, however, that paternity can only be established (for non-probate reasons) to the age of majority.

II. The Nature of Retroactive Support Obligations.

There are two different ways in which the states deal with the retroactive support obligations. First, some states allow only reimbursement of expenses incurred on behalf of the child prior to the date on which the action to establish paternity and begin child support was filed. The parent seeking recovery from the other parent is allowed only to recover some portion of those expenses that were actually incurred in raising and supporting the child. This scheme puts a substantial burden on the parent seeking the reimbursement because it requires that parent produce specific evidence of the nature and amounts of money expended for or on behalf of the child during some period of time between birth and the filing of the action. While the statutes provide different specifics as to what is included in expenses that may be subject to reimbursement, those statutes that make any reference refer to expenses pertaining to the child’s health, education and general welfare. Most, if not all, provide that in addition to any other reimbursement for support expenses incurred, a mother may recover any moneys paid for prenatal care and birth expenses.

A few states allow the imposition of retroactive support with the idea that merely allowing recovery of moneys expended on a child which can be shown by specific evidence does not adequately take into consideration all those moneys actually paid out. These states provide that the actual expenses which can be shown as paid have little or no importance to a determination of the retroactive support obligation. Instead, the retroactive liability is determined in the same way the courts of that state determine present and future support – by application of the child support guidelines. The incomes used to calculate the child support under the guidelines is not the amount currently earned, but that amount earned for the particular year for which retroactive support is sought. Many of these statutes allow additional deviation factors not permitted in the assessment of current and future support in order.

Although most states use the terminology “support” rather than “reimbursement” in their statutes, the courts of some of those states have interpreted the phrase narrowly has been narrowly construed to require that the party seeking imposition of the retroactive support obligation have the burden of proving the actual amounts of necessary expenses incurred for support of the child, and not to rely on the parent’s incomes in order to calculate a retroactive award of child support.

III. Limitations on Retroactivity.

The statutes for determination of parentage relating to support also consider the time period prior to the filing of the action the state allows the child, or parent on behalf of the child, to seek reimbursement. Again, the States have taken different avenues in attempting to strike a balance between need to provide support for a child outside a marital relationship and the perceived inequity of the potential of a delayed judgment for a retroactive child support obligation.

A majority of the states have provided apparently determined that the balance is better struck by allowing the obligation for support of a child to reach back to the date of birth of the child. Under these provisions, the state’s courts have the flexibility of trying to look at equitably adjusting the expenses of raising the child and provide some sharing of the support obligation for the entire minority of the child.

While the majority of states allow a retroactive support obligation to stretch from the date of filing of the action back to the date of birth (which may also include a provision that the court may also order all or a portion of prenatal and birth expenses paid by one or both parents), a significant number of states place limitations on a parent’s liability for past support obligations – even if no support had previously ever been paid. The presumed rationale of this kind of limitation on liability is encouragement of prompt action by the child or a parent who may seek child support against the other parent as well as a possible perception that such a policy might discourage agreements between parents in which a non-residential parent agrees not to have contact with the child in exchange for a supposed agreement not to seek child support on which the residential parent later reneges when the child is almost age of majority and a potentially huge retroactive support order may result.

Paternity Support Retroactivity and Statutes of Limitation:
A State-by-State Survey

Paternity Support Retroactivity and Statutes of Limitation:

A State-by-State Survey


Uniform Act

Time Within Which Action Must Be Filed

Limitation on Retroactive Recovery
(from date of filing of action)

Type of Recovery

Statutory Reference


<Age 19 2 years Past education and support Ala.Stat. 26-17-8


No Minority 2 years Support[1] Ak.Stat. 9.10.140; Civ.Rule 90.3


3 years[2] Support[3] Az.Stat. 25-809


Birth Reimbursement Ar.Stat. 9-10-110


UPA Majority Date of Filing[4] Support Cal.Fam.Code 4000


UPA 2 years after majority Birth Support Colo.Rev.Stat. 14-14-104


Majority Birth Reimbursement Conn.Gen.Stat. 46b-171



No >21 years Birth Support D.C.Code 16-916[5]


No 24 months[6] Support Fl.Stat. 742.031; 61.30(17)



UPA-1975 3 years after majority support Hawaii Rev.Stat. 584-7


Reimbursement of support Idaho Rev.Stat.7-1121


2 years after majority birth[7] support 750 ILCS 45/9 & 14


Birth Support Indiana Code 31-14-11-5


1 year after majority Birth Support Iowa Code 600B.1; 600B.2; 614.8


3 years after majority Birth Reimbursement[8] Kan.Stat. 38-1115; 38-1121


Majority >Age 4[9] Support Ky.Stat. 406.031


Majority Filing of action Reimbursement La.Rev.Stat. 9:399


>18 years 6 years Support 19A Maine R.Stat. 1554



>18 years Birth Support Mass.Gen.Laws 209C-9


>18 years 6 years[10] support Mich.Comp.Laws722.714; 722.717


UPA 1980 1 year after majority 2 years Reimburse Minn.Stat. 257.58; 257.66


Unif.Law Paternity (1942) 1 year after majority 1 year Support Miss.Stat. 93-9-11; 93-9-29


>18 years[11] 5 years Reimburse Mo.Stat. 210.828


UPA 2 years after majority Birth Reimburse Mont.Code Ann. 40-6-16; 40-6-108


>18 years Birth Reimburse Neb.Stat. 43-1402; 43-1411


3 years after majority Birth[12] Reimburse Nev.Rev.Stat. 126-161


>18 years Birth[13] Support N.H.Rev.Stat.
168A-1; 168A-12


5 years after majority Birth Reimburse N.J.Stat.Ann 9:17-45;9:17-55


3 years after majority Birth Support N.M.S.A. 40-11-15; 40-11-23


No >21 years Birth Reimburse[14] N.Y.Consolidated Laws 686-517; 686-545


No >18 years Birth Reimburse[15] N.C.Gen.Stat. 49-14; 49-15


3 years after majority Birth Support N.D.Rev.Stat.
14-17-06; 14-17-14


UPA 5 years after majority Birth Reimburse Ohio Rev.Stat.
3111.05; 3111.13


>18 years 5 years Reimbursement[16] Okla.Stat.Sec.10-35


No Support Or.Rev.Stat.109.155[17]


>18 years X Pa.C.S.A. 4343


U.P.A. 4 years after majority 6 years Support R.I.Gen.Stat. 15-8-4;15-8-6; 15-8-7




No >18 years Birth[18] Support S.D.Cod.Laws 25-8-5


No 3 years after majority Birth Support Tenn. Code 36-2-311


No 2 years after majority birth Support Tx.Stat. 160.005


Unif.Act on Paternity (1965) 4 years Support Utah Code 78-45a-1; 78-45a-3


No 3 years after majority Verm.Stat.Ann.15-302; 15-306


No none Reimbursement Vir.Stat. 20-49.8


5 years[19] Support Wash.Rev.Code26.26.30


No >21 Birth Support W.V.Code 48A-6-1; 48A6-3


U.P.A. 19 years[20] Birth Reimburse Wisc.Stat. 767.51(4)


3 years after majority[21] Reimburse Wy.Stat. 14-2-105




[1] Requiring proof of actual costs can lead to prolonged disputes when the interests of custodial parents in maximizing support may encourage deception and the interests of non-custodial parents in minimizing support may disadvantage the children. Rule 90.3 itself is relatively well-defined. Its standards are well-known to the trial courts, and reported appellate decisions interpret it. Attempts to calculate actual out-of-pocket expenses are not only difficult, but are also likely to underestimate incremental costs attributable to support. Therefore, we hold that absent extraordinary circumstances, courts should apply the calculation methodology of Rule 90.3 to determine amounts to be reimbursed to custodial parents for support of children during periods not covered by support orders.” Vachon v. Pugleise, __ P.2d __ (1996).

[2] “unless the court makes a written finding of good cause after considering all relevant circumstances.”

[3] Court shall also award “actual costs of the pregnancy, childbirth and any genetic testing and other related costs.”

[4] However, if public support has been expended, retroactive support may be awarded for a period of up to three years prior to institution of the matter.

[5] J.A.W. v. D.M.E., 591 A.2d 844 (D.C.App. 1991)(“Appellant next claims that the trial judge abused his discretion by denying her request to make the child support award retroactive to the birth of the child. Although there is no express statutory authority for awarding retroactive support for children born out of wedlock, this court has previously held that such children may be awarded support retroactive at least to the date of service of the petition for support. Cyrus v. Mondesir, 515 A.2d 736 (D.C. 1986). Until today we have not had occasion to go further back than that, but neither Cyrus nor any other case precludes us from doing so.”)

[6] In initial child support determination, whether parentage or dissolution, court has discretion to award child support retroactive to date when parents did not reside together in the same house with the child.

[7] In an action brought within 2 years after a child’s birth, the judgment or order may direct either parent to pay the reasonable expenses incurred by either parent related to the mother’s pregnancy and the delivery of the child.

[8] However, see Skillett v. Sierra, 30 Kan.App.2d 1041 (2002)(“Sierra next argues the Kansas Child Support Guidelines (KCSG) are not applicable in a paternity action and the court can only award past expenses for actual expenditures that can be itemized and proven. Again, we disagree. K.S.A. 20-165 authorizes the Supreme Court to establish guidelines in any action under Chapter 38 or Chapter 60. The statues in question deal with the determination of child support and make no distinction between paternity cases under Chapter 38 or child support cases under Chapter 60. Accordingly, we hold the KCSG apply to paternity cases as well as to cases arising under Chapter 60. Sierra next argues the Kansas Child Support Guidelines (KCSG) are not applicable in a paternity action and the court can only award past expenses for actual expenditures that can be itemized and proven. Again, we disagree. K.S.A. 20-165 authorizes the Supreme Court to establish guidelines in any action under Chapter 38 or Chapter 60. The statues in question deal with the determination of child support and make no distinction between paternity cases under Chapter 38 or child support cases under Chapter 60. Accordingly, we hold the KCSG apply to paternity cases as well as to cases arising under Chapter 60.”)

[9]     “[L]iability for child support shall not predate the initiation of action taken to determine paternity as set forth in Kent.Rev.Stat. 406.021 if the action is taken four (4) years or more from the date of birth.”

[10]   “However, if proceedings under this act are commenced after the lapse of more than 6 years from the birth of the child, an amount shall not be awarded for expenses or support that accrued before the date on which the complaint was filed unless [certain conditions exist.” Mich. Stat. 722.717(2).

[11]    “Action where child has no presumed father may not be brought more than eighteen years after birth. . . except that an action to determine the existence of the father and child relationship as to a child with no presumed father . . . may be brought by the child within three years after such child attains the age of eighteen.”

[12]    The court may “[d]irect the father to pay the reasonable expenses of the mother’s pregnancy and confinement. . . [and t]he court may limit the father’s liability for past support of the child to the proportion of the expenses already incurred which the court deems just.”

[13]    “for the reasonable expense of the mother’s pregnancy and confinement and for the education and necessary support of the child.”

[14]    “The order may also direct each parent to pay an amount as the court may determine and apportion for the support of the child prior to the making of the order of filiation, and may direct each parent to pay an amount as the court may determine and apportion for (i) the funeral expenses if the child has died, (ii) the necessary expenses incurred by or for the mother in connection with her confinement and recovery and (iii) such expenses in connection with the pregnancy of the mother as the court may deem proper.”

[15]    “Retroactive child support is based on the non-custodial parent’s share of the reasonable actual expenditures made by the custodial parent on behalf of the child. Hicks v. Hicks, 34 N.C. App. 128, 130, 237 S.E.2d 307, 309 (1977); Tidwell v. Booker, 290 N.C. 98, 116, 225 S.E.2d 816, 827 (1976). The amount of support which the non-custodial parent ’should have paid’ based on an application of the Guidelines is not the appropriate test of liability. See Hicks, 34 N.C. App. at 130, 237 S.E.2d at 309 (1977).”Lawrence v. Tice, 107 N.C.App. 140 (1992).

[16]    “shall be ordered to pay all or a portion of the costs of the birth and the reasonable expenses of providing for the child, provided that liability for support provided before the determination of paternity shall be imposed for five (5) years preceding the filing of the action.”

[17]    Oregon Revised Statute 109.155 is not effective until December 31, 2001. Until that time, section 26, chapter 746, Oregon Laws 1997, as amended by section 57a, chapter 704, Oregon Laws 1997, is effective and is automatically repealed onDecember 31, 2001.

[18]    “In the absence of a previous demand in writing served personally or by registered or certified letter addressed to the father at his last known residence, not more than six years’ support furnished before bringing an action may be recovered from the father.” S.D.C.L. 25-8-5.

[19]  Any period of time in which the responsible party has concealed himself or avoided the jurisdiction of the court under this chapter shall not be included within the five-year period.

[20] Nineteen years of age and pursuing a high school education. Wisc.Stat. 767.51, 767.25. “Essentially, if a child files a paternity action before graduating from high school, as Brad Michael did, under Wis. Stat. Sections 767.51(3) and (4) the father is liable for past support from the child’s birth until the child reaches age 19 or obtains his or her high school diploma. However, if the child files a paternity action when she is less than 19 years old but after graduating from high school, as Roberta Jo did, under settled law the father is not liable for any past child support payments.” In re Paternity of Roberta Jo W., (Wisc.S.Ct. slip op. #96753 5/22/1998).

[21]  Statute of limitations is 5 years from date of birth if paternity action is not brought by or on behalf of the child or the state department of family services.