Child support is meant to be used for the benefit of the child. Often, however, clients allege that their former spouse is misusing child support payments for their own benefit. While there are certain actions that can be taken by a court to address this issue, a court in New Jersey has considered the novel issue of whether child support payments can be paid directly to a child instead of the former spouse. In the case of Kayahan v. Kayahan the court considered whether a noncustodial parent may pay part of a mandatory weekly child support obligation directly to an unemancipated child who is 18 years old or older, rather than to the custodial parent.
This was not the first time that this issue has been addressed or considered by a New Jersey court. The non-traditional and unorthodox concept of a non-custodial parent paying part of a child support obligation directly to an unemancipated college-age “child”, as opposed to the custodial parent, was briefly addressed, in dicta, by the Appellate Court in the 2012 case of Jacoby v. Jacoby, 427 N.J. Super 109 (App. Div. 2012). In Jacoby, the court stated that, in some cases, it “may be more appropriate for a parent to provide direct payments to the student for some of the child's support needs rather than to the other parent.”
The court in Kayahan v. Kayahan held that:
1.) When an unemancipated child is over eighteen (18) years old, a court, in its discretion, may permit the non-custodial parent to pay part of his or her child support obligation directly to the child, under certain parameters. Such conditions may include the child’s utilization of the funds only for specifically earmarked and pre-approved expenses, along with an ongoing requirement that the child provide documented accountings of use of the funds to both parents.
2.) In determining whether to permit direct payment of part of a child support obligation directly to the child, the court may consider, among other factors, (a) evidence of the child’s maturity and history of responsibility, (b) the non-custodial parent’s history of paying timely child support, and (c) whether there will be sufficient remaining child support funds for the custodial parent to continue reasonably maintaining the child’s primary home without significant economic hardship. If such hardship will likely result, the court may decline to modify the child support arrangement whereby the non-custodial parent pays the child support directly to the custodial parent.
The court in Kayahan further stated that “[a]n implicit caveat to approval of any such proposed arrangement, however, is that there must be counterbalancing provisions in place to minimize the risk of monetary waste of child support by a financially inexperienced or immature son or daughter. Compulsory child support is not intended to serve as a child’s allowance, with the child free to spend the money however he or she may impulsively or frivolously choose. Rather, child support is primarily designed for the purpose of helping fund basic needs and other fundamentally important costs in a child’s life pending emancipation, and thus should not be the subject of irresponsible dissipation by the child as intended beneficiary.”
The court in Kayahan ultimately found that payment of the child support to the “child” was not appropriate after weighing the facts of the case. However, this case has opened the door as another potential remedy to the misuse of child support payments by former spouses of unemancipated children over the age of 18.