Retroactive increases in child support should be the rule, not the exception, the Constitutional Court has ruled

With rising prices, our firm is increasingly being contacted by parents of children for whom the other parent pays child support seeking representation in child support increase proceedings. Parents are also often interested in the possibility of retroactive child support increases, which are available up to 3 years in arrears.

The approach of the district and regional courts ("general courts") to the issue of retroactive maintenance increases is not uniform. That is why the Court has now intervened and unified the decision-making practice of the general courts by its rulings (see the rulings of the Constitutional Court, Case No. I.ÚS 871/24 and I.ÚS 1760/24.

The reason for the inconsistency in the decision-making of the general courts was that the Civil Code does not always give the courts an order to increase maintenance retrospectively, but only gives them the possibility to do so. However, the law does not expressly lay down any criteria, the fulfilment of which would mean an automatic retroactive increase in maintenance.

Basis for the Constitutional Court's decision

The Constitutional Court received two constitutional complaints at the same time, arguing against decisions of district and regional courts refusing to increase maintenance retroactively.

The courts refused to retroactively increase child support, citing:

1) the absence of an out-of-court effort (challenge) by the parent to whom child support is paid to increase child support against the obligor parent,

2) the delay between the change in the child's circumstances and the filing of the petition for the initiation of proceedings to increase child support,

3) the unpredictability of the amount of retrospectively determined maintenance for the obligor parent and his possible sudden indebtedness.

However, the Constitutional Court rejected all of these arguments used by the general courts (here the Regional Court in České Budějovice and the Regional Court in Ústí nad Labem) against the increase in maintenance.

The only possible interpretation of Section 922(1) of the Civil Code, in the event that it is proven in the proceedings for the increase of maintenance:

1) that the child's circumstances have changed from the last court order,

2) the child's reasonable needs indicate the need for an increase in maintenance, and

3) the income, assets and abilities of the obligor parent allow for an increase in child support,

is to order a retroactive increase in child support for the benefit of the child.

This is because the right to material support is a child's right under Article 32(4) of the Charter of Fundamental Rights and Freedoms and, in conjunction with Article 3(1) of the Convention on the Rights of the Child, any interpretation of the law must be made in a manner that is in the best interests of the child.

In other words, the ordinary courts cannot hold it against the child that the parent to whom maintenance is being paid by the other parent fails to give the paying parent a timely notice to increase maintenance or to make an application for a judicial increase in maintenance without delay.

Obligations of parents according to the Constitutional Court

The Constitutional Court also aptly notes that parental responsibility and the duty of maintenance are shared by both parents, and both parents can and should monitor the child's needs and the life milestones that will involve an increase in the child's needs, usually in connection with the transition to a higher level of education. It also concludes that monitoring and evaluating the growth of the child's reasonable needs and the ongoing increase in maintenance is, above all, part of the responsible exercise of parental responsibility.

On the other hand, the Constitutional Court urges the ordinary courts to indicate to parents in advance, in their decisions on the fixing of maintenance, at what point the child's reasonable needs can be expected to increase.

Parents may also rely in this respect on the methodology of the Ministry of Justice available on the vyzivne.justice.cz website, which indicates that the increase in maintenance should generally occur when the child starts to live,

1) the first grade of primary school,

2) the second stage of primary school (or a multi-year grammar school),

3) to study at a higher vocational school or university.

Each parent can also download and fill in an indicative maintenance calculator at the link provided. In this regard, please note that in order to calculate the recommended amount of maintenance correctly, all input data must be entered correctly.

Will the retroactive increase in maintenance be automatic?

No. While it is true that, following the new decisions of the Constitutional Court, retroactive increases in maintenance will be the rule, this does not mean that retroactive increases will always occur.

The most frequent case in which there will be no increase in maintenance is likely to be a situation in which the income, assets and capacity of the parent paying maintenance do not allow for an increase.

If you are a parent who is considering applying for a retrospective increase in maintenance, you must also take into account that retroactivity is based solely on the circumstances existing at the time (i.e. it corresponds in particular to the means and income conditions at the time). This is based on the earlier decision-making practice of the Constitutional Court, in particular the decision in Case No. I.ÚS 2533/12.

The aspect of the relationship between the paying parent and the child

An important aspect that the general courts will have to assess when deciding on maintenance (not only when increasing it retroactively) is the quality of the relationship between the child and the paying parent. The importance of this relationship increases as the child grows older.

In this respect, the Constitutional Court concluded that, in view of the principle of mutual maintenance obligations between parents and children, which is a manifestation of intergenerational family solidarity based on human decency and morality, it seems appropriate to take into account the manner in which the child (especially if he or she is almost an adult), in accordance with his or her intellectual and voluntary maturity, approaches the obligor parent, how he or she behaves towards him or her and whether he or she is interested in him or her. However, their relationship must always be assessed comprehensively in a joint reciprocity.

At the same time, however, it should be borne in mind that the Constitutional Court has also previously ruled in this respect that the situation of mutual misunderstanding between a parent and a child who, for example, fails to inform the paying parent of the start of a new course of study, etc., cannot be laid solely at the door of the child.

It is certainly not a good idea to rely as a paying parent on the fact that if you point out to the court that your child is not talking to you, the court will decide that there is no need to increase maintenance. On the contrary, the court will determine what is causing the disruption in the relationship. In most cases, the fault for the broken relationship will lie with both parties, but this may not always be the case. For example, one can imagine a situation of manipulative behaviour by the caring parent to the detriment of the relationship between the child and the paying parent, which could conceivably lead to the manipulative parent paying for the child's material needs at a higher rate than the other parent.

Summary

In a recent decision, the Constitutional Court established that retroactive increases in child support should be the rule, not the exception, when a change in circumstances is shown to increase the child's needs. Parents who petition the court for an increase in child support may request an increase up to three years in arrears.

The Constitutional Court's decision responds to the previous inconsistent practice of the general courts, which in some cases rejected retroactive increases by referring to the lack of an out-of-court attempt to reach an agreement or because of the potential financial burden on the obligated parent. However, the Constitutional Court stated that these arguments cannot override the child's right to material security and that the interpretation of the law must always follow the best interests of the child.

The Constitutional Court also appealed to the obligation of both parents to monitor the growing needs of the child, especially during life changes, such as entering higher education, and to respond to maintenance in a timely manner where appropriate.

Retrospective increases in maintenance will therefore now be the rule.

If you are dealing with a similar problem with (retroactive) child support increases, it is advisable to contact a family law specialist to help you understand your rights and options and to develop a strategy that is consistent with the best interests of the child.

*summary of article was written using ChatGPT artificial intelligence