As a New Jersey Family Law attorney, I am frequently asked whether a custodial parent can agree to waive child support in return for a waiver by the non-custodial parent. On some occasions, that waiver might be a relinquishment of custody or parenting time rights. In other cases, the waiver of child support might be in return for waiver of an interest in an asset. The usual response to these questions is that a custodial parent cannot waive the child’s rights to support because our Courts have long stated that “the rights of child support belong to the child”. In other words, when parties wish to enter into an agreement regarding non-payment of child support or termination of child support obligations before the child’s emancipation, those agreements may not be enforceable.
However, a recent decision (decided December 31, 2013) by the New Jersey Superior Court, Appellate Division, raised questions as to whether the New Jersey Courts’ view on child support obligations may be changing. In the matter of Roder v. Roder, Appellate Division Case No. 20-2-2394, an Appellate Division panel considered a matter involving the payment of child support arrears (resulting from the failure of the non-custodial parent to keep current on his child support obligations) owed to a custodial parent, who died. The non-custodial parent argued that the payment should be made to the parties’ son based on the theory that “the child support belongs to the child”. In fact, the Family Court Judge agreed and ordered that the child support arrears be paid to the son. On Appeal, the Appellate Court disagreed and determined that the child support arrears were owed to the decedent’s estate. The Appellate Court disputed that this ruling effects the Courts’ long standing view that “child support belongs to the child”, since there was no evidence that the child support arrears were anything other than a debt owed to the custodial parent. Since the custodial parent met the support needs of the child, the money was owed to her.
Another context in which the issue of the rights to child support is often raised is when the non-custodial parent feels that the child support being paid to the custodial parent is not being used for the benefit of the child. In fact, a question frequently raised by support payors is whether the child support obligation could be paid directly to the child, rather than to the custodial parent. While in most cases, the answer is that the custodial parent will remain the recipient of child support, it is possible that arguments can be successfully made that when a child is in college, the child’s support needs can be paid directly to the child. Also, in cases involving shared custody, good arguments can be made that the child’s support needs could be satisfied by the direct payment of child related expenses, rather than a weekly payment by one parent to the other. This argument may be particularly persuasive in cases where there is evidence that the parent receiving the support is not using the funds to pay for the child’s needs.
Barry Chatzinoff, Esquire has been representing South Jersey residents in Matrimonial and Family Law matters for more than 30 years.
Law Office of Barry Chatzinoff, P.C.
120 Haddontowne Road, Cherry Hill, NJ 08034