Retroactive Child Support Modificiation in Indiana

Usually child support cannot be modified prior to the filing of a petition to modify support. Case law allows for two exceptions to this rule: (1) the parties have agreed to and carried out an alternative method of payment which substantially complies with the spirit of the decree, or (2) the obligated parent takes the child into his or her home, assumes custody, provides necessities, and exercises parental control for such a period of time that a permanent change of custody is exercised.

Take a look at Whited v. Whited, 859 N.E.2d 657(Ind.2007) and McGuire v. McGuire, 880 N.E.2d 297 (Ind.App. 2008). The following comes from McGuire:

The trial court relied on the second of those, the “change of custody” exception. However, custody of Daughter was transferred to third parties, not to “the obligated parent.” Id. Accordingly, the change of custody from Mother to the Days does not fit into the “narrow exception” defined by our Supreme Court, id., and Father’s support obligation did not terminate in 1994 pursuant to Whited.

Father’s other argument for terminating his child support obligation, which the trial court also adopted, was that equity should not permit Mother to be unjustly enriched at Father’s expense. “Both Mother and [Daughter] agree that Mother should not receive the child support benefit while [Daughter] was at the Days. However, the child support belonged to [Daughter] and can be paid to her.” (Appellants’ Reply Br. at 3.) Because the “right to support lies exclusively with the child,” Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind. 1994), reh’g denied, we agree Father’s obligation to pay support did not abate while Daughter was with the Days, and Daughter should receive those payments.