Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Does A Change In Child Custody Automatically Cause Child Support To Be Recalculated?

No. Under New Jersey law, when a change of custody of a child occurs from one parent to another, the new custodial parent must have child support addressed by the Superior Court of New Jersey at that time.  If they wait, then will not be successful in obtaining retroactive credit and thus shall still legally owe that support, even for the time the child was living with them. As New Jersey child support lawyers, the attorneys at our law firm here in New Jersey handle child support matters on a daily basis.  The following case demonstrates how important it is not to just “assume” everything is fine because two parents were able to resolve certain matters that it obviates the necessity to have a your lawyer take care of the situation legally right when the transfer of custody occurs.  

In Prikril v. Prikril, ex-husband Michael Prikril, filed a motion with the Superior Court of New Jersey, Family Part of Middlesex County, in which he sought a modification of his child support obligation. In response, ex-wife, Esther Prikril, filed a cross-motion to set child support arrears for all children, and argued that statutory law prohibited the Family Part from retroactively modifying the child support order.

After their divorce, Esther received custody of the children, and was awarded child support for the benefit of the children. Afterwards, one of the children moved in with Michael, with Esther’s permission, and as a result Michael reduced the amount of his monthly child support payment. This change in custody, was never memorialized by a court order. About ten months later, Michael filed a motion with the Family Part of Middlesex County to modify his child support obligation. In response, Esther filed a cross-motion for set child support arrears for all the children. The Family Part of Middlesex County held that Michael’s child support obligation had already been discharged as a matter of law when one of the children moved in with him. As such, the Family Part refused to award arrears to Esther for a child that was no longer in her custody.

In this case, the Honorable Judge Berman of the Superior Court of New Jersey, Family Part of Middlesex county was tasked with analyzing how Rule 4:50, which affords relief from an order or judgment, interacted with New Jersey Statute 2A:17-56.23a, which is titled “Order or portion of order for child support; enforcement and entitlement to full faith and credit; prohibition of retroactive modification; exception.” According to this statutory enactment, payments for child support will be given full faith and credit, and will be a judgment that operates by law on and after the day it is due. However, no payment of child support will be retroactively modified by the court.

Michael and Esther got divorced on May 9, 1988. After the divorce, Esther got custody of the three kids that were born during the marriage, and was designated as the parent of primary residence. The parent of primary residence is the parent whose house the child spends most of his or her time, and generally where the child spends more than 50% of the overnights. The parent of alternative residence, is the parent that the child lives with when not living in the primary house. The official definitions for both these terms come directly from the New Jersey Child Support Guidelines. The parent of primary residence is always the parent that receives child support, with the parent of alternative residence responsible for maintaining those payments on time. The parent of primary residence has a duty to keep the parent of alternative residence informed with what matters that could affect the child’s general welfare.

Esther was also awarded $ 1,300 a month in unallocated support for the benefit of the children. Despite the custody arrangement, in August of 1988, the second child, also name Michael, left Esther’s house to live with his father. While this change in custody, was never formally memorialized in a court order, Judge Berman found that Esther clearly gave her permission for the child to move in with his father. In turn, due to the new custody arrangement, Michael reduced the amount of his monthly child support payment to $ 919, representing the carrying charges on the home where Esther continued to live with the two other children. Esther accepted these reduced payments for about ten months while the parents lived with this arrangement.

In June of 1989, Michael filed a motion with the Family Part court of Middlesex County to modify his child support obligation to represent this new arrangement. In responses, Esther filed a cross-motion to fix child support arrears for all of the children, including the child whose custody was transferred to Michael, as the difference between the original child support award $ 1,300, and the $ 919 paid during the ten months in between the child moving in with Michael, and Michael filing the motion to modify his child support obligation.

Esther contended that the Family Part court of Middlesex County could not retroactively modify the child support order according to statutory law. She further argued that any decision to refuse to fix child support arrears, and order payment of the same, would be in direct opposition to the above mentioned legislative pronouncement, New Jersey Statute 2A:17-56.23a. The Honorable Judge Berman rejected Esther’s argument because, as he stated, “common sense and patent equity mandate otherwise. More importantly, however, Judge Berman stated that in this circumstance, the Family Part court of Middlesex County was not actually modifying any child support order or obligation at all.

Judge Berman explained that case law precedent, specifically the 1974 New Jersey Appellate Division case of DiTolvo v. DiTolvo, clearly and correctly demands that a change in child custody necessarily abrogates child support. If the court ordered Michael to continue to provide the same level of child support to Esther, the resulting loss would be two fold. Not only would Esther receive funds that she is not entitled too, but Michael would lose money that he needs to support the child in his custody.

Ruled 4:50 allows for modification, or relief, from an order or final judgment as long as there is evidence of mistake, excusable neglect, inadvertence, or if the order or judgment has been satisfied. Judge Berman found that Michael’s obligation had been discharged as a matter of law when the previous change of custody took place. If Michael had filed his motion to formalize that custody status right when custody changed, he would have clearly succeeded on that motion. The judge stated that to deny him the same relief now, would be “an improper elevation of form over substance.”

Judge Berman quoted a brilliant passage that Judge Learned Hand said many years ago in the 1944 second circuit case of Guiseppi v. Walling, “There is no surer way to misread a document than to read it literally.” Even though the Family Part of Middlesex County was construing a statute rather than a document, Judge Berman stated that Judge Learned Hand’s proposition did not lose any of it relevance. Moreover, in the 1860 case of State v. Clark, the Supreme Court of New Jersey stated that when the literal interpretation of words of a statute result in an absurdity, the statute must be interpreted to avoid that absurdity.

In concluding, Judge Berman stated that Family Part of Middlesex County was not retroactively modifying a continuing child support obligation. Because the child support obligation expired as a matter of law when the transfer of custody occurred, there was no support obligation to modify, retroactively or otherwise. Instead, Judge Berman said the Family Part was doing what was both obvious and equitable: refusing to honor child support “arrears” for a child that was not in the custody of the parent who got the child support award in the first place. If the Family Part chose to grant Esther the relief she requested, it would result in unjustly enriching her, while unjustly depriving Michael of his property, and circumventing justice in the process.

Please give our law firm a call today if you have any child support related questions.