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

May I Waive Child Support In New Jersey?

No, The New Jersey Appellate Division affirmed and held that a parent’s duty to support his or her child cannot be waived or terminated by a property settlement agreement.

As a practicing as a child support lawyer here in New Jersey for over the past 20 years.  Therefore, the attorneys at my firm I am well aware of the importance New Jersey Family Part courts protecting children, including child support payments. My New Jersey law firm’s motto has always been “kids first”. In keeping with this mantra I always advise my clients that they cannot include a provision waiving or terminating child support in their property settlement agreements. Furthermore, I would advise any client that may have executed a property settlement agreement with this language, to file a motion for child support immediately.  

In Patetta v. Patetta, father Nicholas Patetta appealed an order of the Family Part that denied his motion to emancipate his son, and terminate his child support obligation. Nicholas and JoAnn Patetta got married in October 1981. During the marriage they had three children together. Nicholas, Jr. was born on April 10, 1982, Chrystal was born on June 22, 1985, and Coleen was born on July 13, 1988. On August 3, 1993, a final judgment of divorce was entered, and a property settlement agreement was incorporated into it. This property settlement agreement required Nicholas to pay $ 50 every week per child in child support.

The property settlement agreement also provided that a child would be considered emancipated upon: reaching eighteen years old, marriage, death, or starting a full time job. Furthermore, upon a child’s emancipation, Nicholas’s child support obligation would be reduced in proportion to the number of children emancipated. Specifically, the child support payments would be reduced by $ 50 a week for every child emancipated. In addition, the property settlement agreement stipulated that both parents would try their best to pay for the colleges costs of the minor children including, room and board, tuition, and books, in accordance with their financial ability at that time, after the child has applied for financial aid, and student loans and scholarships have been used up.

Nicholas filed a motion for visitation in April 1998. In response, JoAnn filed a cross-motion in which she demanded an order that modified the age of emancipation from eighteen years old, to the date that the children finished college or post-secondary vocational training. The Family Part denied her motion without prejudice because she failed to demonstrate a valid reason to modify the property settlement agreement under Rule 4:50-1(a)-(f).

Once Nicholas, Jr. turned eighteen, Nicholas filed motion for his son’s emancipation, and a $ 50 reduction in his child support obligation. In response, JoAnn contented that Nicholas, Jr. was still living at her house, and was about to start his second year at community college. She claimed that she paid for his food, shelter, transportation, clothing, and spending money. Because there were only minimal college expenses that were not covered by scholarships, grants, or loans, JoAnn did not demand any portion of college expenses from Nicholas. For this reason she thought she deserved a continuation of child support payments. Judge Happas held oral arguments, at the conclusion of which he refused to declare Nicholas, Jr. emancipated, and ordered that Nicholas must continue to make child support payments to JoAnn. Nicholas appealed this decision, and based his argument on the terms of the property settlement agreement.

The New Jersey Appellate Division explained that there is no specific age that triggers emancipation. reaching the age of eighteen creates only a “prima facie” rather than a “conclusive” proof of emancipation. “Prima facie” is a Latin term that literally means “on its face.” It means a fact presumed to be true unless it is disproved. Prima facie proof is based on first impression, and accepted as correct until proved otherwise. The person who brings forth a cause of action must prove a prima facie case to avoid dismissal. The same person must produce enough evidence on all elements of the claim to support the claim and shift the burden of evidence production to the other party.

A fact sensitive inquiry is required to conclusively determine whether a child is emancipated, and no longer has any right to parental support. The essential question is whether the child had passed “beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.” In other words, the question that needs to be answered is if the child is independent and responsible enough to make his or her own decisions and take care of his or herself. To answer this question consideration must be given to the circumstances of the child, including but not limited to his or her needs, interests, independent resources, the family’s reasonable expectations, and the parties’ financial ability. The child’s actual, proved needs determine the duty of child support, not the child’s age. As such, even though, generally, parents are not required to pay child support for a child over the age of eighteen, being enrolled in a full-time college or vocational school has been a valid basis for courts to order continued support.

In Patetta, the father argued that the property settlement agreement incorporated into the final judgment of divorce clearly established that the child would be considered emancipated at the age of eighteen, and therefore, his child support obligation should be terminated, except for his “best efforts” to contribute for college expenses. The New Jersey Appellate Division, however, explained that a child’s right to support, belongs to that child alone, not the custodial parent. Therefore, a custodial parent cannot waive that child’s right in a property settlement agreement. The appellate panel quoted the 1990 New Jersey Supreme Court case of Zazzo v. Zazzo, stating that “there is no divorce between parent and child.”. The panel further cited the 1991 Middlesex County Family Part case of R.H. v. M.K., which held that a parent cannot terminate his or her parental obligation by contract. The public policy of the State of New Jersey favors parens patriae interest, which states that the child’s welfare “prohibits parents from bargaining away the essential rights of their sons and daughters, including the right to be properly supported.”

The New Jersey Appellate Division likened the present case to the 1993 Appellate Division case of Martinetti v. Hickman, in which a mother was granted custody by a Florida divorce order, and waived child support and visitation.  Later the mother and her daughter moved to New Jersey and filed a motion for child support. The issue was resolved with a mutually agreed to consent order that provided that the father would pay child support until the child reached eighteen years of age. The father then filed a motion to emancipate his daughter and terminate his child support obligation. Much like Patetta the child was enrolled in college full-time, and the college expenses were nominal after scholarships and grants. The mother opposed the motion, and wanted the court to continue the child support payments instead of the college contribution. In that case, the New Jersey Appellate Division ruled that the child’s right to support was not ended by the mother’s consent to an order terminating child support when the child turned eighteen. Instead, the court held that the issue of child support must be decided by analyzing the interests and needs of the child.

Nicholas tried to distinguish Martinetti, by stating that this issue involved a property settlement agreement, rather than a consent order. However, the New Jersey Appellate Division did not find any difference. The appellate panel stated that even though courts prefer to enforce mutually agreed to property settlement agreements, this enforceability is still subject to judicial scrutiny. When a child’s rights are at issue, the judicial scrutiny is heightened. Therefore, the New Jersey Appellate Division held that a parent’s duty to support his or her child cannot be waived or terminated by a property settlement agreement, and that Nicholas, Jr. was still entitled to receive continued child support because he was living at home and still dependent on his parents for his needs while he was in college.

Our law firm can help you with your child support issues.