Whether you file a new child support case or a modification depends on whether any court order has ever addressed the child’s support. If none has, you bring an original action; if one has, even in passing, modification is the only route.
The Test
In Conley v. Conley, 259 Ga. 68 (1989), the decree required the mother to pay part of the children’s medical bills but no periodic support, and the father sued for it under OCGA 19-7-2. The Supreme Court held that where a decree “at the very least” addresses a parent’s liability for support, a modification action “is the custodial parent’s exclusive remedy,” and medical bills count.
In Drake v. Drake, 279 Ga. App. 576 (2006), an agreement stating that neither parent would pay support was not silence, so the father’s later claim was a modification. But in Hackbart v. Hackbart, 272 Ga. 26 (2000), an award the complaint never sought was reversed, leaving the decree silent and the mother free to “institute an original action.”
Agreements That Never Became Orders
A private agreement is not an order. In Pearson v. Pearson, 265 Ga. 100 (1995), a parents’ oral deal was enforceable “only when made the order of the court,” and in Worthington v. Worthington, 250 Ga. 730 (1983), a paid-off settlement with the mother did not bar the child’s claim. With no order for a child born outside marriage, the case is original under OCGA 19-7-24 and can reach back to birth, as our back child support post explains.
Why It Matters
A modification requires “a substantial change in either parent’s income and financial status or the needs of the child,” OCGA 19-6-15(k)(1), generally cannot be refiled by the same parent within two years, OCGA 19-6-15(k)(2), and cannot reach installments already due. OCGA 19-6-17(e). An original action has none of those hurdles. The grounds and procedure for modification have their own posts.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!