A New Jersey Superior Court family judge recently determined the standard for child support awards where the child is “gifted,” warranting a deviation from the child support guidelines. While normally the guideline-set child support awards account for payments of a child’s extracurricular activities, a finding by the court that the child is “gifted” may result in a greater award than that required by the guidelines. Because the guidelines are silent as to what constitutes “giftedness,” a court must engage in a fact sensitive inquiry to set the child support amount.
In P.S. v. J.S., the parties had been divorced for seven years and had one daughter together, Julie, aged thirteen. The parties shared joint legal custody of Julie, but Julie’s mother was the primary residential parent and Julie’s father enjoyed liberal parenting time. Under the New Jersey Child Support Guidelines, the father paid Julie’s mother $113 in weekly base child support based on his imputed annual income of approximately $33,000 and the mother’s imputed estimated annual income of $23,000. Custody issues had been raised at various points throughout the litigation and in 2014 and 2016, they necessitated court-held interviews with Julie, who was 11 and 13 at the time, respectively.
During the interviews, Julie expressed a deep focus and dedication to theater and public performance. She relayed an enthusiasm for acting and performing on the stage and noted career aspirations to become a singer or writer. The court noted the growth in Julie’s fervor for stage performance between the two interviews and opined that it was not a passing fad, but rather that she had shown long-term dedication to the endeavor. The court further noted that in both interviews, Julie expressed a desire that any parenting schedule refrain from interfering with her theatrical activities, such as chorus or rehearsals. In sum, the court found that, for Julie, acting was not simply a hobby, but an integral part of her present and future goals.
The dispute between Julie’s parents in P.S. v. J.S. did not arise from a lack of support or involvement from either party, but rather was one involving allocation of funding. Julie’s mother sought extra contribution from the father for Julie’s extracurricular activities. Julie’s father argued that such costs were built into his basic child support obligation under the State’s guidelines. It was noted that the anticipated costs for Julie’s theater-related activities, including but not limited to clothes, travel, makeup, dues and coaching, could add up to at least several hundred dollars per year.
The court noted that pursuant to the comments to the child support guidelines, entertainment expenses are generally factored and included in a guideline-level support figure. However, the importance of this particular extracurricular to Julie warranted, in the court’s view, a deviation from the guidelines. The comments to the guidelines permit the court to add supplemental funds to guideline-level support for the development and special needs of a “gifted” child. Conceding that “gifted,” undefined in the guidelines, is a vague and ambiguous term, the court turned to Webster’s Dictionary for guidance. The court highlighted that giftedness usually arises in one of four areas: (1) academics; (2) athletics; (3) technology; and (4) the arts. The court further noted that giftedness is less tangible in the arts and cautioned that courts cannot and should not become de facto art critics to evaluate these types of claims.
Theoretically, the court stated, it would be possible for one or both parties to bring in an “expert” to offer an opinion on a child’s giftedness. However, such an expert’s opinion may be no less subjective than the average person, or even the court’s, when it comes to giftedness in matters of art. The court in P.S. v. J.S. opined that it had enough information to make an informed and equitable decision without first having to watch the child perform and/or hear from an expert. Here, the court held, Julie’s giftedness did not sound in her artistic ability, but rather, her extraordinary drive, focus and commitment to theatre at such a young age. Noting that drive itself can be a gift, the court found it is fair and equitable under the guidelines for both parents to contribute a small and reasonable supplemental amount specifically to help the child’s ongoing acting-related efforts and expenses.
However, the court asserted that no matter how gifted a child may be, no parent should be compelled to spend more than he or she can reasonably afford. Any set amount of supplemental child support must therefore be economically reasonable and should not be open-ended. Accordingly, the court ordered an additional total of $250 per year to be earmarked for Julie’s theatre endeavors. While the court could allocate the $250 between the parties in accordance with their respective incomes, Julie’s mother only sought a 50% contribution from her ex-husband. The court thus ordered that Julie’s parents equally contribute to the $250 “stipend.”
The court cautioned that its opinion should not be construed to require a parent to pay for any extra activity that a child may “like.” According to the court, there was a clear distinction between general extracurricular costs and an isolated skill or discipline where the child demonstrates an enormous and highly impressive commitment.
In this day and age, children participate in numerous after-school activities – sometimes to the point of overstimulation. In light of the foregoing opinion, it appears as though a parent seeking supplemental child support for an “extracurricularly active” child will need to do more than simply show participation in many activities or even a single, expensive hobby. Such support is generally already accounted for in guideline-level child support awards. However, the parent that can show a true commitment, zeal and aptitude for a specific activity may succeed in obtaining additional support funds for his or her child.
Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.
