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Can an Unallocated Child Support Order be Retroactively Modified When There are Both Emancipated and Unemancipated Children? Banner Image

Can an Unallocated Child Support Order be Retroactively Modified When There are Both Emancipated and Unemancipated Children?

Month: November 2016

Can an Unallocated Child Support Order be Retroactively Modified When There are Both Emancipated and Unemancipated Children?

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In what appears to be a case of first impression, the trial court in Ocean County considered issues concerning the retroactive emancipation and modification of previously unallocated, court-ordered child support for parties with multiple unemancipated children.   

In the case of Harrington v. Harrington, the plaintiff-husband filed a post-judgment motion to emancipate the youngest child and sought retroactive modification of the unallocated court-ordered child support he had been paying.   Plaintiff and defendant had three daughters.  At the time of their divorce in 2012, the children were 20, 17 and 15 years old.  Plaintiff was ordered to pay $240/week in unallocated child support for the three children.   In September 2014, the parties agreed by consent that the two older children had become emancipated, however, the parties did not discuss reducing the child support payments, and plaintiff continued to pay the $240/week.   The youngest daughter was a senior in high school at this time and her plans for college had not yet been decided.   Following graduation from high school, the youngest daughter continued to remain with defendant-mother, but ultimately decided not to attend college. 

In approximately February 2016, plaintiff-husband filed a motion with the court seeking (a) emancipation of the youngest daughter as of July 2015 (shortly after her high school graduation) and (b) to retroactively modify the child support he had been paying from September 2014 to the present from $240/week to $80/week to account for the emancipation of the two older daughters.  Defendant consented to the emancipation of the youngest daughter as of September 2015, but opposed the retroactive modification of the child support from $240/week to $80/week from September 2014 to September 2015.

In addressing the motion, the court had to consider “legal principles that arguably lead to opposite conclusions.”  First, New Jersey has an anti-retroactivity statute, which generally prohibits retroactive modification of an existing child support order to a date prior to the filing date of a motion for such relief, or forty-five days earlier upon written notice. N.J.S.A. 2A:17-56.23a.  Here, plaintiff was seeking modification of child support dating back to September 2014, earlier than the statute allows.  Second, the court also had to consider case law holding that the anti-retroactivity statute does not prevent retroactive termination of child support when a child is retroactively emancipated.  

In reconciling the competing legal principles, the court ruled that:

1) When parties have multiple children covered under an unallocated child support order, and a child becomes emancipated, such emancipation is a change of circumstance, for which either party may seek review and modification of the existing unallocated child support order, and

2) In a situation where a parent seeks a retroactive modification of unallocated child support for multiple children based upon a child's emancipation while other unemancipated children remain, the court has the discretion whether to retroactively modify child support back to the date of a child’s emancipation, depending upon certain equitable factors set forth in this opinion.

The court cited law reciting that the Family Court in New Jersey is a court of equity and that, given the mixed nature of this circumstance, the solution must be fact-sensitive in nature, giving due consideration to various equitable factors and considerations, including but not necessarily limited to the following:

1) How much time has passed between the date of one child's emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the non-custodial parent seeks to have returned by the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors relevant to the analysis?

Ultimately, the court in Harrington scheduled a hearing to analyze these factors, weigh the comparative equities, and determine whether to exercise its discretion and retroactively modify unallocated child support prior to the motion filing date, based upon the prior emancipation of one or more children. This ruling is the first to provide some real guidance on the treatment of these types of modification applications, which are generally more complicated and can result in very varied relief. 

Change of Circumstance, Alimony, Child Support, and the Impact of Additional Non-Marital Children

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In the unpublished decision by the New Jersey Appellate Court, Karkoszka v. Karkoszka, the appellate court issued a decision after reviewing a trial court’s denial of a post-divorce (i.e., post-judgment) motion to change alimony and child support based on the birth of a non-marital child.  The case was not one of first impression, but did reiterate the standard for a modification of alimony and child support when a non-marital child is born to the alimony and child support paying spouse.

In Karkoszka v. Karkoszka, the defendant-husband appealed a March 20, 2015, trial court order denying his motion to modify his alimony and child support obligations and awarding attorneys’ fees to his plaintiff-ex-wife.  The parties had been married 14 years and had two marital children.  In 2014, after a five-day trial, the Court entered a Judgment of Divorce (“JOD”) awarding wife limited duration alimony of $1,100 per month for a period of 15 years and requiring husband to pay $749 in monthly child support.  Within one year of the entry of the JOD, husband filed four motions to modify his alimony and child support.  All four motions were denied by the trial court.  After the fourth motion was denied by the trial court and his ex-wife was awarded attorneys’ fees, husband appealed the denial. 

The appellate court upheld the trial court’s denial of husband’s motion, but with different reasoning.  As a preliminary matter, the appellate court reiterated that the Family Part has authority under N.J.S.A. 2A:34-23 to modify alimony and child support awards. The statute provides that alimony and child support orders "may be revised and altered by the court from time to time as circumstances may require." Assessment of changed circumstances requires a judge to examine the parties' current situation and the situation when the order was entered. The changed-circumstances determination must be made by comparing the parties' financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations. In order to establish changed circumstances, a "party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis.

As part of his motion in Karkoszka, husband alleged that the birth of a non-marital child was a “changed-circumstance” and warranted modification of the alimony and child support.  The trial court rejected husband's assertion that the birth of his new child should be considered as a factor in determining whether a change in circumstances had been demonstrated by husband.  The trial court stated that the birth of husband's new child was the result of his "voluntary act." The trial court's apparent, but ultimately incorrect, logic was that husband could not unilaterally generate a change in circumstances based upon a voluntary decision to have an additional child and rejected his claim. The appellate court also rejected husband's claim, but did so for different reasons. 

The appellate court determined that the trial court's reasoning was inconsistent with the rationale in Martinez v. Martinez, where the appellate court held that a parent's obligation to support a child who had not been born and was "not contemplated at the time of the original" support order, is one of many factors a court must consider in determining whether there is a change in circumstances warranting modification of a child support award.  The appellate court noted that the support of a child by its parent "should not primarily depend on the date of his or her birth, [or] the family in which he or she is born" and that the "Child Support Guidelines [do] not substantially differentiate between children born of the first or ensuing relationships when modification is an issue or the right to be supported by a common, legally obligated parent is asserted."

While the appellate court disagreed with the reasoning of the trial court, it found that the evidence establishing the birth of husband's new child did not demonstrate a change in circumstances sufficient to require a modification of his child support and alimony obligations. Instead, the appellate court found that it is only one of many factors that the trial court was required to consider in determining whether there was a change in circumstances sufficient to warrant modification of the support order.

The appellate court went on to state that, in addition to the birth of the new child, the trial court was required to consider whether husband "has an ability, [and] the opportunity to earn additional income — and if so, how much — so as to lessen the potential financial impact, the potential hardship, on his first family that" the requested reduction in husband's obligation may impose. The trial court was also required to determine whether husband resides with the other parent of the newly born child, the other parent's earnings and contributions to shared expenses, the lifestyle of each family, the extent to which the lifestyles will be affected by a modification of the court's order, and whether the child has special needs. Because husband failed to provide such evidence and other information that must be considered in Martinez, the appellate court determined that the trial court properly rejected husband's singular reliance upon the birth of his new child as a basis for his claimed change in circumstances. 

Husband’s appeal also argued the court erred in awarding attorneys’ fees to ex-wife and asserted that the court failed to make findings concerning the factors that must be considered under Rule 5:3-5(c).  Appellate courts review an order regarding attorneys’ fees in a matrimonial case to determine if the trial court abused its discretion. Harte v. Hand.  An appellate court "will disturb a trial court's determination on counsel fees only on the 'rarest occasions, and then only because of a clear abuse of discretion.'" J.E.V.

Under N.J.S.A. 2A:34-23, a court may award counsel fees in a matrimonial matter and "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." New Jersey Court Rules also provide that a trial judge may, in his or her discretion, award counsel fees in a matrimonial action. In awarding counsel fees, a judge should consider the following factors in "determining the amount of the fee award": (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. 

Needless to say, the appellate court in Karkoszka, found no abuse of discretion in the trial court's decision to award counsel fees to ex-wife. The trial court determined that husband's filing of four motions for modification within one year of the entry of the JOD, his filing of the present motion within two months of the denial of his immediately preceding motion, and his ongoing failure to offer any evidence of a change in the circumstances related to his ability to earn the imputed income, justified the imposition of an attorney fee award.  The appellate court also found that, contrary to husband's assertions, the trial court also expressly considered the financial circumstances of the parties, their respective abilities to pay the fees, the fees incurred, the reasonableness and good faith of the parties concerning husband's modification, and ex-wife's cross-motion to have husband held in contempt, and the record otherwise supports the court's determination.

Welcome to Riker Danzig’s Family Law Blog!

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Welcome! We want to sincerely thank you for viewing Riker Danzig’s Family Law Blog. Our hope with this blog is to provide updates and valuable information to individuals seeking facts about the ever changing area of family law in New Jersey.  Whether it is information regarding prenuptial agreements, separation and divorce proceedings, mediations and arbitrations, trials, post-judgment matters, domestic violence or appeals, we look forward to becoming your resource on it all.    

Our experiences in the family law area have been diverse and we look forward to sharing some of them with you on this blog.  As we blog on new cases pending in New Jersey, celebrity cases, news articles, and personal experiences, readers will get a sense of the type of attorneys we are and how, in difficult times, we can be a resource to those needing help. 

Happy reading!

LGBT: Marriage Yes; Fertility Treatment - Not in New Jersey

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In what may be considered more of a constitutional or even insurance law issue, rather than a family law issue two lesbian couples have filed a federal civil rights suit challenging the constitutionality of the New Jersey law that requires insurance companies to offer fertility treatment to heterosexual women, but not to those in same-sex relationships.  As stated, while not strictly a family law issue, the issue is important enough and impacts same-sex couples enough that I certainly thought it was worth blogging about.  And it also highlights that although same-sex couples may have the right to marry, they still do not enjoy all of the same rights as heterosexual couples. 

The 2015 United States Supreme Court decision of Obergefell v. Hodges held that same-sex couples' right to marry is guaranteed by the due process clause of the Fourteenth Amendment.  However, according to the New Jersey law requiring insurance companies to offer fertility treatment to heterosexual couples, but not same-sex couples, the right to procreate is not protected by the due process clause.

New Jersey law requires insurance plans in the state to cover medically necessary expenses related to the diagnosis and treatment of fertility.  If a heterosexual couple is determined to be infertile, the New Jersey law requires insurance companies to cover fertility treatment.  The law, however, defines infertility as a disease or condition resulting in abnormal function of the reproductive system, such that a person is not able to conceive after two years of unprotected intercourse if the female partner is under 35 years of age, or one year of unprotected intercourse if the female partner is 35 years of age or older or one of the partners is considered medically sterile.  N.J.S.A. 17B:27-46.1.  The law does not offer any alternative definition or protections for same-sex couples. 

The lawsuit that was filed by the two lesbian couples gives specific examples of the emotional and financial impact of trying to pay for fertility treatments, which is a situation that a heterosexual couple would not have to face.  Certainly, based on the complaint, the limitations of the law have greatly impacted the couples. 

Both California and Maryland already require insurance companies to offer such fertility benefits without regard to sexual orientation.  Is New Jersey next?  I look forward to updating this issue as the lawsuit progresses. 

Grandparent Visitation Rights – A Complicated Issue For Courts

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Grandparent visitation rights is a complicated issue for the courts.  On the one hand, you have the rights of the parents to determine how they raise their child – including to determine to whom the child is exposed.  On the other hand, you have the grandparents, who desire to have a relationship with their grandchild.  Both sides usually have compelling reasons why they are correct, so courts struggle to make the correct decision.  This is exactly what happened in the unpublished appellate decision of B.S. (Ben) v. A.S. (Amy) . 

In B.S.  v. A.S. , Ben, Jack’s father and Mindy’s grandfather, sued Amy, Mindy’s mother, for grandparent visitation after he had been denied visitation with Mindy.  Jack was Mindy’s father.  Jack and Amy divorced in 2010.  Jack was an alcoholic.  Jack ceased having parenting time with Mindy in 2011.  In 2014, Ben filed a complaint against Amy for visitation with Mindy, while Jack was terminally ill with cirrhosis of the liver.  Jack subsequently died.  The trial court denied Ben’s application for a plenary hearing and hence visitation with Mindy.  Ben appealed.  (Amy also appealed the court’s denial of her request for attorneys’ fees.)

The appellate panel reversed and remanded for the trial court to evaluate the allegations, giving due consideration to all the statutory factors.  Pursuant to the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, the grandparent seeking visitation over the objection of a fit parent must prove by a preponderance of the evidence "that visitation is necessary to avoid harm to the child." Moriarty v. Bradt, 177 N.J. 84 (2003). The probability that a child will suffer serious psychological or physical harm provides grounds for interference with parental autonomy under the doctrine of parens patriae. The Court provided the following examples of supporting evidence:  the grandparents' evidence can be expert or factual. For example, they may rely on the death of a parent or the breakup of the child's home through divorce or separation. . . . In addition, the termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, could form the basis for a finding of harm. 

If a grandparent meets that burden, the presumption in favor of parental decision-making is overcome and the best interest standard applies. Following are the relevant factors to be considered:

(1) The relationship between the child and the applicant;

(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;

(3) The time which has elapsed since the child last had contact with the applicant;

(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

A "fact-sensitive analysis addressing all of the relevant statutory factors is required." R.K. v. D.L., 434 N.J. Super. 113, 151 (App. Div. 2014).  The trial judge's premise in  B.S. v. A.S. was that Ben was required to show he was a "psychological parent or a primary attachment figure" or that he had something more than a "healthy and loving grandparent-grandchild relationship" in order to be entitled to relief.  The Appellate Division found that this premise was erroneous and that none of the factors enumerated in N.J.S.A. 9:2-7.1(b) established that a threshold relationship must be met. The Appellate Division went on to state that “while the relationship between the grandparent and child is surely an important factor to be weighed, it is but one of the factors to be considered.” 

In light of recent rule amendments and case law, the Appellate Division ordered the trial court to determine whether B.S. v. A.S. should proceed as a complex matter (R. 5:4-2(j)), as Ben requested, with discovery as necessary, or as a summary action, which is the normal procedure in non-dissolution family matters.  The panel further vacated the order denying Amy counsel fees and remanded for the trial court to reconsider her application for costs incurred thus far, as well as the estimated costs of further litigation.

As this case aptly demonstrates, grandparent visitation can be a complicated issue when considering the competing interests of the parties.   Careful analysis must be done to the facts specific to each case so that the most appropriate and compelling arguments can be made.

Ambiguous Property Settlement Agreement – It’s a “Mess”

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New Jersey courts embrace the resolution of marital controversies through a Property Settlement Agreement (“PSA”), which are voluntarily entered into and promote post-divorce stability. Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999).  A PSA sets forth the terms of the negotiated settlement agreement between divorcing spouses.If the parties cannot come to a negotiated settlement in a divorce proceeding, the court (or arbitrator in some cases) will decide the issues for the parties at a trial.  Statistics show that the overwhelming majority of divorces resolve prior to a trial.  The PSA will address the issues that were the subject of the divorce proceeding – i.e. spousal support, alimony, equitable distribution, child support, custody and parenting time, counsel and expert fees, etc.  Since the PSA memorializes the agreement between the parties and will be referred to in the future as issues or disputes may arise, it is imperative that the terms of the agreement between the parties are clear and unambiguous.  But what happens when the terms of a PSA are not clear and unambiguous – according to the trial judge in the Appellate Division decision of Gilmore v. Salem it’s a “mess”.

In Gilmore v. Salem, the plaintiff appealed from a trial court order that interpreted the parties’ PSA as it related to which spouse would pay for their child’s college expenses.  The PSA stated in one section that their child’s college expenses would be proportionately paid by the parties based on their “income”, while another section of the PSA stated that their child’s college expenses would be proportionately paid by the parties based on their “income and assets.”  The trial judge declined to hold a plenary hearing on the issue, explaining she believed it would "be a mess." 

The trial judge in Gilmore rendered her decision based on the motion papers without the benefit of additional discovery or testimony.  Upon review, the Appellate Division reversed the trial judge’s order and remanded the case back to the trial judge to conduct a plenary hearing to determine whether, under the PSA, both income and assets in general should be considered, or just the parties' income.  The trial judge was also ordered to then determine the proper apportionment of college expenses given the financial data provided by the parties and the PSA, and if the trial judge concludes that circumstances warrant modification of the terms of the PSA, those findings should also be adequately set forth in the trial judge’s decision.

Unfortunately for the trial judge, the Appellate Division ordered her to conduct the plenary hearing that will certainly be a “mess” considering the ambiguous terms of the PSA.  After consideration of the time and expense of conducting such a hearing, in my opinion, neither party is likely to be satisfied with the outcome.  PSAs are meant to memorialize the negotiated settlement agreement between the parties in a divorce.  Careful review of the terms to ensure that the language is clear and unambiguous is imperative and can save both time and money later.      

Can I Reduce My Alimony Obligation?

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In order to achieve a reduction of an alimony obligation, a payor must demonstrate that there has been a “changed circumstance.”  If there truly has been a “changed circumstance”, then, sometimes, a modification may be accomplished through negotiations with the former spouse.   If, however, the former spouse is not open to negotiating the alimony obligation or the “changed circumstance” is less apparent, a motion must be filed with the court requesting a plenary hearing to determine whether the Property Settlement Agreement (“PSA”) or Judgment of Divorce warrants modification.   While this is a fairly common motion for experienced family law practitioners, the results are fact specific.   Family Part judges have considerable discretion in determining whether a changed circumstance warrants an alimony modification. Larbig v Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006) This discretion turns on a Family Part judge's "experience as applied to all the relevant circumstances presented[.]"

In the unpublished appellate decision of Grier v. Grier, the court considered such a motion that had been denied by the trial court judge.  In Grier, the Appellate Court affirmed that “[t]he trial judge correctly explained that, when a party seeks to modify any support obligation under a PSA, the party must demonstrate "changed circumstances" supporting such a modification. J.B. v. W.B., 215 N.J. 30, 327 (citing Lepis v. Lepis, 83 N.J. 139, 146-48 (1980)).  A party seeking modification has the burden of demonstrating such changed circumstances as would warrant relief from his or her obligation.  Importantly, when a supporting spouse brings an application for a downward modification, the central focus is on the supporting spouse's ability to pay. Miller v. Miller, 160 N.J. 408, 420 (1999).  A reduced income is one event that may qualify as "changed circumstances." Reese v. Weis, 430 N.J. Super. 552, 569-70 (App. Div. 2013) (citing Lepis, supra, 83 N.J. at 146).   In order to prove changed circumstances, however, the changed circumstances must be permanent. (citing Lepis, supra, 83 N.J. at 157).

The trial court judge in Grier noted the payor's reduced income. However, the court also noted that the reduced reported income did not appear to be a permanent circumstance.   Payor asserted that his current income was lower now because of the loss of a client.  However, the trial court found that payor failed to demonstrate that the decline in business was permanent and inhibited his ability to earn, especially since the initial alimony had been based on the supporting spouse’s three year average income  The motion judge concluded that these facts did not evidence a showing of permanent changed circumstances and that there was no basis upon which the trial court judge should have held a plenary hearing. 

As we are reminded in Grier, even when there has been a reduction in income, the court will consider all the relevant circumstances presented.  So to answer the initial question of “Can I reduce my alimony obligation?” – the answer is YES...  if based on all the relevant circumstances presented it can be demonstrated that there has been a “changed circumstance.”  

Giving Up Your Right to Litigate in Court: Arbitration Clauses in Property Settlement Agreements

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In the matter of Natoli v. Natoli the New Jersey Appellate Division upheld a Property Settlement Agreement (“PSA”) that contained a mandatory arbitration clause.  The PSA, among other things, contained an arbitration clause whereby the parties had agreed to binding arbitration for any disputes regarding personal property that had not already been mutually distributed. The appellate panel found that the PSA and arbitration clause clearly declared that the parties had agreed to arbitrate extant personal property disputes and, therefore, waived any right to a judicial determination of those disputes. All that remained for the parties was their limited right to challenge the arbitrator's determinations, which defendant waived by filing a motion that sought enforcement of certain portions of the arbitration award.

The inclusion of an arbitration clause in a PSA is not unusual.  By the time parties resolve their divorce proceeding and a PSA is entered, clients are often tired of going to court and like the idea of going to arbitration or mediation in lieu of court for disagreements that may arise after the divorce.  Parties have to be aware, however, that if they give up their right to judicial intervention in the future and agree to a mandatory mediation or arbitration clause, they will be bound by that decision and will be unable to reverse the decision, except in specific circumstances.   An arbitration clause in a PSA can afford the parties a quick resolution to any future disagreements, but the implications can be far reaching and must be contemplated when the PSA is entered.     

Can You Pay Child Support Directly to Your Child?

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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.  

Change of Physical Custody

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Often, the decision of which parent a child should live with after a divorce is an extremely difficult decision for a court to reach.  After all, no one can know the true dynamics of a family unless they live it.  Sometimes, even the court’s decision is not always permanent.  In Skinner v. Cole, App. Div, the court determined that custody should be changed from mother to father.  Plaintiff-mother appealed the order that transferred physical custody of the parties' son, then 13-years-old, to defendant-father. This was largely because the trial court failed to hold a plenary hearing to resolve the disputed issues of material fact that were apparent from the parties' conflicting Certifications before transferring custody.  The Appellate Court vacated the trial court's order and remanded for further proceedings.

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