It is well-settled under New Jersey law that the right to receive child support belongs to the child.2 As stated in Ordukaya v. Brown,3 “the obligation of all parents to provide, to the degree possible, for their children is fundamental, and cannot therefore be destroyed by the errant, capricious, or uninformed actions of the other parent.”4 Therefore, due to the State’s interest in assuring a proper level of support for all children, the right to child support cannot be waived by the custodial parent.5
Children in New Jersey have the right “to be supported at least according to the standard of living to which they had grown accustomed prior to the separation of their parents.”6 “In determining both the amount of money necessary to raise children of divorce and the division of that obligation between working custodial and non-custodial parents, ‘the talisman of concern is always the welfare of the child.’”7
New Jersey courts have discretion in making child support awards upon a proper application and consideration of the child support guidelines. Child support obligations are “mainly determined by the quality of economic life during the marriage, not bare survival.”8 The law seeks to prevent children from becoming the economic victims of divorce or separation, however, in most instances it is often difficult to maintain the pre-separation standard of living. Accordingly, a child also has the right to share in a parent’s good financial fortunes,9 and “the law is not offended” if any incidental benefit (e.g. better car, larger home, etc.) is obtained by the primary caretaking parent who receives greater amounts of child support as a result.10 To that end, it is often difficult to draw the line between a child’s needs commensurate with lifestyle and overindulgence. One illustrative case is Strahan v. Strahan, involving Giants star Michael Strahan, in which the Appellate Division reversed and remanded the trial court’s child support award of $235,984.00 per year for the court’s failure to make findings concerning the reasonable needs of the children.11
Once a child support obligation has been established by the court, either party may seek modification based on changed circumstances. It should be noted that a modification application may be based on either a positive or negative change in circumstances and, in regards to a request for an upward modification of child support, the custodial parent brings the action for modification on behalf of the child and not in his or her own right.12 In one of the leading cases on the issue of support modification, Lepis v. Lepis, the Court provided several examples of “changed circumstances,” including an increase in the cost of living, an increase or decrease in the supporting spouse’s income, and a parent’s illness, disability, or infirmity arising after the original judgment.13 In any event, the necessary showing is always the “best interests of the children.”14
This article is for information purposes only, and is neither legal advice nor the creation of an attorney-client relationship. If you are involved in a child custody or child support matter, you may have questions about your child’s rights, your parental rights and obligations, or about the rights and obligations of your child’s other parent. If so, it is important to contact an experienced family law attorney.
1. See Pascale v. Pascale, 140 N.J. 583 (1995), and Sheridan v. Sheridan, 247 N.J. Super. 552 (Ch. Div. 1990).
2. Martinetti v. Hickman, 261 N.J. Super. 508 (App. Div. 1993).
3. 357 N.J. Super. 231 (App. Div. 2003).
4. Id. at 241.
5. Martinetti, 261 N.J. Super. at 512.
6. Lepis v. Lepis, 83 N.J. 139, 150 (1980).
7. Pascale, 140 N.J. at 592, citing Guglielmo v. Guglielmo, 253 N.J. Super. 531, 546 (App. Div. 1992).
8. Lepis, 83 N.J. at 150.
9. See Weitzman v. Weitzman, 228 N.J. Super. 346 (App. Div. 1988), and Zazzo v. Zazzo, 245 N.J. Super. 124 (App. Div. 1990).
10. Zazzo, 245 N.J. Super. 124.
11. 402 N.J. Super. 298 (App. Div. 2008).
12. Martinetti, 261 N.J. Super. at 512.
13. Lepis, 83 N.J. at 151.
14. Id. at 157.
Justin M. Smigelsky, Esq., 2014, all rights reserved
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