Since the Child Support Guidelines were amended in the late 90s, the number of overnights with each parent factored in to the child support calculus for cases within the Guidelines. In general, the more overnights meant less child support and when custody got to 50-50, support quite often was nominal under the Guidelines. Because of that, it is not uncommon for there to be an agreement that neither party pays any direct child support when there is a 50-50 arrangement and the parties’ Marital Settlement Agreement (MSA) reflects that. But what happens when the arrangement changes from 50-50 to something else? Is that a change of circumstances that would warrant a modification of child support? One would think so.
That said, the trial judge in the case of Slosky v. Slosky didn’t think there was a change of circumstances where a child went from 50-50 to no overnights for 19 months. In an unreported (non-precedential) Appellate Division opinion decided on July 22, 2024, the Appellate Division disagreed and reversed.
For purposes of this blog, the facts are straightforward. The parties divorced in 2013 and shared 50-50 parenting time without litigation until 2022. In late 2021, a few months shy of the child’s 15th birthday, the child ran 3 miles from plaintiff’s to defendant’s home and then did not return. 14 months later, in October 2022, defendant filed a motion seeking sole custody and the establishment of a child support award among other things. Plaintiff cross moved for the establishment of a overnight parenting schedule, among other things.
Oral argument took place almost 5 months later, in mid February 2023. On that day, defendant’s motion was denied and plaintiff’s cross motion, was granted in part to include reunification therapy. In denying defendant’s motion, the trial court found that the “hearsay account of the parties’ child, as relayed in [d]efendant’s filings, are not adequate to demonstrate a prima facie case of changed
circumstances to justify the relief being sought by defendant.”
Defendant appealed and as noted above, the Appellate Division found that almost 19 months where no overnights was occurring, a fact not in dispute, was a change of circumstances. The Appellate Division reasoned:
“Here, the trial court mistakenly exercised its discretion by finding defendant had not met her burden of establishing a prima facie case of changed circumstances. The parties agreed to an MSA that evenly divided parenting time and, on that premise, did not include a child support obligation for either party. While we acknowledge the validity and weight of MSAs, it is well settled the court may modify a child support arrangement if the party seeking the modification can show changed circumstances. Spangenberg, 442 N.J. Super. at 536 (quoting Lepis, 83 N.J at 157).
In this case, defendant clearly established changed circumstances. Defendant certified E.S. has lived with her continuously and without additional support from plaintiff for nearly fifteen months at the time defendant filed her motion. While plaintiff disputes the cause of his damaged relationship with E.S., it is not material to whether changed circumstances exist. What is material is the undisputed fact that his relationship with E.S. is strained and that he has not exercised parenting time since their argument. Further, plaintiff does not dispute he has not provided any additional financial support and has only maintained his payment of E.S.’s health insurance premiums as agreed to in the MSA. The new arrangement had been in place for nearly fifteen months at the time defendant filed her motion and nearly nineteen months when the trial court issued its order. “Some time” had clearly elapsed in this case and it was clear the significant change in parenting time was not temporary…
The court further noted that while reunification therapy was a:
“…laudable goal of an eventual normalization of the relationship … the record contains no suggestion of a realistic expectation of a reversion to the negotiated fiftyfifty parenting schedule in the foreseeable future. While the court was prudent to facilitate reunification via therapy, plaintiff’s obligation to “proper[ly] support” his unemancipated son “to the extent he is financially able” continues in the meantime, “even though [if there is currently] no relationship between them.” J.R. v. L.R., 386 N.J. Super. 475, 484 (App. Div. 2006).
The matter was remanded for a plenary hearing. In the meantime, no child support has been paid for more than three years. While there is case law out there that suggests that a temporary change of the parenting schedule would not warrant a change in child support in case schedule reverted back, if the concept is that child support is for the child and cannot be waived, fairness dictates that child support have been instituted. It could have always been modified back if the 50-50 resumed.
Finally, I am often asked how old does a child have to be to have a say in the parenting schedule. My answer is usually that “it depends” but as children get into their teens, a court may be more likely to hear their wishes as long as there is not foul play (alienation) that is the cause, and sometimes, even then. Here, the Court seemed to hear the child’s wishes by not requiring overnights, but then the child was ultimately punished by a lack of a support Order.
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