Guide to "Family Law" in New Jersey

Paul G. Kostro, Esq.

 

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Who is Obligated to Pay Child Support?

  1. Parent of Primary Residence (PPR) is the parent, in a shared parenting arrangement, with whom a child resides for more than fifty percent of the time or, if a child spends equal time with each parent, the parent with whom the child resides while attending school. See Child Support Guidelines, Appendix IX-A ¶ 14(b)(1) to R. 5:6A. The parent who is not the PPR is called the Parent of Alternate Residence (PAR). Id. at ¶ 14(b)(2).

    The Guidelines presume that one parent will be designated the PPR and the other will be designated the PAR, and although the designation is significant for purposes of determining issues relating to child support, see id. at ¶ 14(g)(4), it is not necessarily true that either parent will be responsible for paying child support in a true shared parenting arrangement. See Benisch v. Benisch, 347 N.J. Super. 393, 400- 01 (App. Div. 2002).

    The designation of one parent as the PPR is significant in that the PPR, pursuant to the Guidelines, is presumed to bear the "controlled costs" as defined in the Guidelines. Id. at 397 (citing Guidelines, Appendix IX-A ¶ 14(f)).

    The designation of one parent as the PPR generally has a significant impact on the child support calculation. Benisch, 347 N.J. Super. at 398-99. However, the shared parenting Guidelines for child support are applicable "provided only that the court accounts for and makes an appropriate adjustment to reflect the unusual facts respecting selection of a PPR and PAR" where the living arrangements for the child are truly equal. Benisch, 347 N.J. Super. at 400.

    The Guidelines make clear that child support does not depend on the time each parent spends with the child but rather upon the resources of each parent that are available for the benefit of the child. The Guidelines presume that the parent with the greater income will contribute more to the support of the child, see Guidelines, Appendix IX-A ¶ 1, ¶ 4, and this is true regardless of the specific living arrangements for a child.

    In order to properly account for a child's living arrangements and the cost to each parent of maintaining a home for a child in the shared parenting context careful attention to the three categories of costs, see Benisch, 347 N.J. Super. at 400-01; Guidelines, Appendix IX-A ¶ 14(f), is essential to the proper application of the child support formula.

    See Coka-Morin v. Morin, Appellate Division, A-723-04T5, September 27, 2005, not approved for publication.


  2. In the case of R.A.C. v. P.J.S., Jr., __ N.J. Super. __ (App. Div. 2005) [Docket No. A-6130-02T2, decided August 31, 2005], the court held that parents have a duty to support their children from the date of birth until the date of emancipation; however, when a "father" learns that he has been deceived as to the fact that "his child" had been fathered by another man, then the "father" who had been deceived may seek an award of "reasonable expenses" of "support" of the child against the man who is the biological father -- when deception is involved, a claim under the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59, is not time-barred by the mere passage of time.


  3. In the October 2, 2005 issue of The New York Times, there is an article discussing how the truth revealed by a Paternity Test may prove to be painful -- however, not knowing may prove to be equally (if not more) painful. For those that are interested, there is a website that claims to be dedicated to: "helping Children and Men discover who's the biological father, assisting deceived, scammed and hustled paternity fraud victims regain their constitutionally protected freedom and their lawful assets."


  4. Congress mandated that every state must adopt the Uniform Interstate Family Support Act (UIFSA) to provide unity and structure in each state's approach to the modification and enforcement of child support orders. 42 U.S.C.A. §666(f).

    Effective March 5, 1998, UIFSA, N.J.S.A. 2A:4-30.65 to -30.123, replaced the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), N.J.S.A. 2A:4-30.1 to -30.64, as the statute governing the interstate establishment, modification, and enforcement of child support.

    UIFSA contains a specific long-arm provision, N.J.S.A. 2A:4-30.68, entitled "Personal jurisdiction over nonresidents[,]" which provides:

    In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:

    a. the individual is personally served with a summons or notice within this State;

    b. the individual submits to the jurisdiction of this State by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

    c. the individual resided with the child in this State;

    d. the individual resided in this State and provided prenatal expense or support for the child;

    e. the child resides in this State as a result of the acts or directives of the individual;

    f. the individual engaged in sexual intercourse in this State and the child may have been conceived by that act or intercourse; or

    g. there is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.

    See Sharp v. Sharp, 336 N.J. Super. 492 (App. Div. 2001).


  5. Law Lessons from: BERRYMAN v. SAUNDERS-FONT (App. Div., A-3135-04T2, March 2, 2006, not approved for publication): The shared parenting support guidelines permit an analysis pursuant to which even a Parent of Alternate Residence (PAR) might be entitled to receive child support from the PPR. Benisch v. Benisch, 347 N.J. Super. 393, 400-01 (App. Div. 2002); see Child Support Guidelines, at 2314. Therefore, regardless of the outcome of the decision concerning which of the parents is entitled to the PPR designation, the question about a parent's right, if any, to a child support award requires separate analysis within the shared parenting framework.


  6. Law Lessons from DELLAVECCHIO v. HICKS (App. Div., A-5302-04T1, March 23, 2006, not approved for publication):

    An adjudication of paternity may be set aside upon the presentation of "clear and convincing evidence of: fraud . . . with the burden upon the challenger[.]" N.J.S.A. 9:17-41(b).

    Any estoppel, including an estoppel to deny paternity, requires some voluntary action. See Miller v. Miller, 97 N.J. 154, 162 (1984) (obligation to support a child who is not biologically related, "arises from a voluntary assumption . . . ."); Monmouth County Division of Social Services v. R.K., 334 N.J. Super. 177, 196 (Ch. Div. 2000) (duty of support imposed on "a party, other than the biological parent, [who] voluntarily accepts paternity").

    A party's action in consenting to an adjudication of paternity cannot be considered voluntary so as to bar a later repudiation of the consent. Consent given by virtue of fraud is no consent at all. See 26 Williston on Contracts, §69.1, at 486 (4th ed. 2003) ("One . . . fraudulently induced to enter into a contract has not assented to the agreement . . . ." Nor does the party's later support of the child prohibit him from seeking relief when the true facts become known. Action induced by fraud cannot be deemed "voluntary" in any real sense of the word.

    Child support may be ordered to be paid by one who is not biologically related to the child "when the evidence assessed in accordance with the with principles of equity demand that result." M.H.B. v. H.T.B, 100 N.J. 567, 578 (1985); N.J.S.A. 9:17-53c.


  7. Law Lessons from Finch v. Finch (App. Div., Not Published, 2006 WL 853180, April 04, 2006):

    In Filippone v. Lee, 304 N.J. Super. 301 (App.Div.1997), the court discussed situations when emancipation was appropriate, stating: Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support. Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the essential inquiry is whether the child has moved “beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.”
    [Id. at 308.]

    In Newburgh, the seminal case for evaluating higher education cost contribution requests and claims, the Court outlined relevant factors to be considered when determining whether a parent should contribute towards the cost of the child's education. 88 N.J. at 545. Those factors are as follows:
    [ Ibid.]

    In Moss, 289 N.J. Super. at 357-60, the court found that a father's obligation to financially support his daughter through college was terminated because she transferred schools “without any prior notice, consultation or discussion with him.” The court noted the father had expressed his desire to be part of the process several times in the past and “[d]espite prior court orders and the clear requirement that [the mother] communicate with [the father] concerning [their daughter's] educational progress and plans, [he] was not consulted.” Id. at 359. Under these facts, the court found it was no longer fair to enforce the agreement forcing the father to pay tuition. Id. at 359-60.

    In Gac v. Gac, 351 N.J. Super. 54, 64 (App.Div.2002), the court found, although a daughter had cut ties with her father as a result of his abusive behavior, her actions did “not necessarily eradicate the parental obligation to make appropriate contributions for college education.” The court distinguished Moss:
    We do not read Moss as holding that a child's rejection of a parent's attempt to establish a mutually affectionate relationship invariably eradicates the parent's obligation to contribute to the child's college education. In this case, for example, a judge could reasonably find from the evidence that [father's] abusive conduct during the marriage so traumatized the children as to render nugatory any real possibility of a rapprochement. In that event, it would not be reasonable to penalize [his daughter] for the [father's] misconduct. Nor would it be reasonable to reward [the father] by removing his financial obligation to contribute to his daughter's college costs. There are indeed circumstances where a child's conduct may make the enforcement of the right to contribution inequitable, but here it is claimed that it was the [father] himself who was the architect of his own misfortune.
    [ Id. at 65].

    In a case where the parent's abusive behavior leads to the child's desire to no longer have contact with that parent, that decision does not alone warrant an end to financial support of that child. The loss of affection is not dispositive under Newburgh -- it is merely one factor to consider in determining a parent's contribution for education. A parent's financial obligation may be justified under the totality of the circumstances.


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