Terminating child support for children with special needs

On October 3, 2018, the New Jersey Appellate Courts rendered an unreported decision on a case about emancipating a child with disabilities.  (S.E. v. B.S.B. (A-0485-17T2)) 

According to New Jersey statutory law, a parent’s continuing obligation to provide child support presumptively ends when the child turns 19 years old, unless a different date is ordered by the Court.  However, even if a different date is ordered, the support cannot continue beyond the child’s 23rd birthday (except under exceptional circumstances). 

In S.E. v. B.S.B., the child receiving support was 23 years old, born with cerebral palsy, and diagnosed Attention Deficit/Hyperactivity Disorder (ADHD).  The child’s mother filed a motion with the trial court for an order compelling the child’s father to continue providing support even though the child had reached the statutory maximum age.  The child had graduated high school, was working towards earning an Associate’s Degree, and had applied to numerous jobs (without success).  The child’s mother advised the Court that she had obtained social security disability benefits for the child and that he was also utilizing services available through social service agencies.  The Court noted that the child’s father’s testimony was limited, because he basically never had any meaningful contact with his child. 

The trial Court terminated the father’s child support obligation.  The trial court opined that the mother did not provide any current medical evidence that indicated that the child’s cerebral palsy was so severe that the child required a parent to provide financial support beyond the age of 23.  The trial court also remarked that the child was able to attend physical therapy on his own, was able to work, and could be self-sufficient. 

The child’s mother appealed.  The Appellate Court agreed with the Trial Court’s findings, summarizing their thoughts by citing 2 governing statutes (N.J.S.A. 2A:17-56.67(e), and N.J.S.A. 2A:34-23(a)).  The Appellate Court stated that when the 2 statutes are read together, they mean that “if an adult child suffers from a disability but is self-sufficient, he is generally considered emancipated beyond the sphere of a parent’s legal, if not moral, obligation.” (citing Kruvant v. Kruvant, 100 N.J. SUPER. 107, 119 (App. Div. 1968).  The Appellate Court commented that the record showed that the child was independent in most of his daily living activities.  The Appellate Court summed up its decision by stating that the mother in this case bore the burden of rebutting the presumption of her child’s emancipation as a matter of law, and that even though her concerns for her child’s future well-being and financial security were genuine, she had not overcome the presumptive emancipation in accordance with the 2 governing statutes. 

M.B. v. D.B.: Social Security Disability Benefits and Child Support

On October 5, 2018, the Appellate Division handed down an unpublished decision in M.B. v. D.B., a case that was appealed from Mercer County Superior Court, Family Division.

The parties signed a settlement agreement at the time of their divorce in October 2010.  The parties agreed to share joint legal custody of their 11 year old and 13 year old children, and that M.B. would be the parent of primary residence (PPR).  The parties also agreed that D.B. would pay child support to M.B.

In July 2011, M.B. was checked into an alcohol and drug abuse treatment center, and relinquished custody of the children to D.B.  The Court terminated D.B.’s child support obligation in September 2011.  In December 2011, the Court ordered M.B. to pay child support to D.B. (which she did not start paying until June 2012).  In 2011, M.B. began receiving Social Security Disability (SSD) benefits for herself and the children.  M.B. also received a lump sum payment for a period prior to the parties’ divorce.  M.B. kept the SSD benefits paid to her for the children’s benefit because she felt that “she was the one disabled and she was paying child support.”  M.B. also testified that she had “absolutely no idea what [she] did with any money . . . blew it.”

The SSD benefits that M.B. received were greater than the amount of child support she was paying to D.B.  Basically, M.B. was making a net profit from the SSD payments that were supposed to be for her children’s benefit.

After a 3 day trial in May 2016, the Court issue an Order for M.B. to pay D.B. $74,584 for the SSD benefits she received for the children but kept for herself .  The Order also allowed D.B. to deduct the money from his payments to M.B. for alimony due to her over the subsequent 9 years.

M.B. appealed.  The Appellate Division noted that the trial court had carefully calculated the SSD payments M.B. received during

1) The period prior to the parties’ divorce (D.B. was awarded all funds);

2) The period when M.B. still had custody of the children (D.B. was awarded no funds);

3) The period when D.B. had custody and M.B. paid no support (D.B. was awarded all funds); and

4) The period when D.B. had custody and M.B paid support (D.B. was awarded the difference between what she paid and the SSD benefits she kept).

The Appellate Court affirmed the Trial Court’s decision, opining that that SSD benefits paid on behalf of children belong to the children, and should be paid to the custodial parent, and if a non-custodial parent’s child support obligation is greater than the benefit paid, they need to make up the difference. 

W.A.D. v. R.M.C.: Proof that One Parent’s Bad Behavior Will Not Be Rewarded by the Courts

On October 5, 2018, the Appellate Division handed down a decision in W.A.D. v. R.M.C., a case that was appealed from Essex County Superior Court, Family Division. 

Plaintiff and Defendant met in 2009 and shortly thereafter began an intimate relationship.  By autumn of 2009, Defendant moved into Plaintiff’s single-family home in West Orange.  In 2011, the parties’ relationship deteriorated because Defendant wanted to have children, but Plaintiff did not.  Defendant moved out of Plaintiff’s home, but the parties remained in contact.  Defendant became a licensed foster parent during that time.   

On December 3, 2011, a child (G.M.) was born, and the Division of Child Protection and Permanency (DCP&P) contacted Defendant and advised her that the child could be placed with her immediately.  That month, Plaintiff and Defendant picked up G.M. from the hospital together, and all three began living in Plaintiff’s home in West Orange.  The parties agreed that the child would call Plaintiff “Mamma” and Defendant “Mommy.”  Two years later, in 2013, the parties found out that G.M. had a brother who was also available for adoption.  Defendant wanted to adopt G.M.’s brother; Plaintiff did not.  The parties’ relationship once again deteriorated.  Notwithstanding the parties’ failing relationship, they both agreed that they wanted to adopt G.M.  However, given the fact they were a same-sex couple, they believed that the process would be delayed, and as such, they agreed that G.M.’s adoption would be in Defendant’s name ONLY, and that Plaintiff’s would go through the process at a later date.  Defendant formally adopted G.M. on November 11, 2013 (while still residing in Plaintiff’s home). 

In 2014, the parties ended their relationship.  In June of 2014, Defendant began dating another individual (referred to by the initials C.M.C. in court documents), then moved out of Plaintiff’s residence and moved to Union County, into the C.M.C.’s residence.  At that time, G.M. was a few months shy of his 3rd birthday. 

In June 2015, Plaintiff filed an application in Essex County Superior Court seeking joint legal and physical custody of G.M., as well as seeking to have her name placed on G.M.’s birth certificate and to have G.M.’s last name hyphenated to reflect both parents’ surnames.  The Court entered an Order scheduling a trial, temporarily granting Defendant sole legal and residential custody, appointing a Guardian ad Litem for G.M., and appointing an expert to determining whether there was a psychological bond between Plaintiff and G.M.  Plaintiff soon thereafter amended her pleadings to seek an order designating her as G.M.’s parent of primary residence (PPR). 

In July 2015 Defendant married C.M.C.  In November 2015, Plaintiff filed a complaint for adoption of G.M. in Essex County.  Coincidentally (or not) that same month, C.M.C. filed a complaint for adoption of G.M. in Union County.  C.M.C.’s complaint for adoption was ultimately dismissed and she was ordered to pay Plaintiff $26,000 in counsel fees.  The Court awarded the fees because (among other things) C.M.C. failed to advise Union County Court that the child she sought to adopt was the subject of custody litigation that had been pending in Essex County for several months. 

The parties’ trial in Essex County commenced on May 10, 2016 and concluded on September 23, 2018.  Judge Craig Harris presided over the trial and rendered an opinion on November 18, 2016.  Judge Harris’ Order set forth that Plaintiff had met the criteria in V.C. v. M.J.B. to be deemed a psychological parent to G.M.  (163 N.J.  223 (2000)).  He also found that it was in G.M.’s best interests for Plaintiff to be designated as PPR.  Plaintiff’s request to be placed on G.M.’s birth certificate, as well as her request to hyphenate G.M.’s last name to reflect both parties’ surnames were also granted. 

Defendant filed a motion for reconsideration of the court’s November 18, 2016 Order.  Her motion was denied.  Thereafter, Defendant appealed the orders on several grounds, the most important of which were the contention that the court erred in finding that Plaintiff was a psychological parent to G.M., and that the Court erred in ordering joint legal custody with Plaintiff as the PPR. 

The Appellate Court affirmed the trial judge’s findings and rulings.  The Appellate Court echoed reiterated one of the tenets from V.C., which states that “the psychological parenting doctrine is based on the ‘recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them.’” The Court outright rejected Defendant’s arguments that proper weight was not afforded to her status as an adoptive parent. The Court stated that once an individual is deemed to be a psychological parent to a child, they stand “in parity with the legal parent” and that the standard deciding custody and visitation issues in that regard is “best interests of the child” in accordance with N.J.S.A. 9:2-4. 

The Appellate Division also rejected the following several arguments Defendant made, which were nothing more than attacks on Plaintiff’s style of parenting (such as referring to Plaintiff as a babysitter, and a playful caretaker).  The Appellate Division instead focused on the abundance of proof in the record that Defendant was a deeply uncooperative co-parent and did things such as: 

  • Failing to provide Plaintiff with information regarding G.M.’s medical providers (on several occasions) 
  • Unilaterally removing the child from his school district 
  • Registering the child in a new school 
  • Denying Plaintiff parenting time during the holiday 
  • Refusing to allow the child to participate in activities with Plaintiff’s family 
  • Disparaging Plaintiff on social media 
  • Moving several times in a short time span (contrasted with Plaintiff remaining at the same residence for 15 years) 

The Appellate Division recounted expert witness testimony that stated that the degree of vitriol coming from Defendant was affecting G.M. and” had the potential to cause him to sustain significant and lasting harm.” 

The trial court’s admonishment of Defendant’s refusal to co-parent, as well as the Appellate Division’s affirmation of the trial court’s decision should serve as a warning to parents in ugly custody battles; acting as a child’s only parent, and making unilateral decisions with respect to the health, education and general welfare of the child, can and will (and should!) backfire in a custody trial. 

J.G. v. J.H.: A Not-So-Surprising Tale of the Court’s Apathy Towards Non-Dissolution Cases

Most attorneys who practice family law agree that the FD docket is the “Wild West” of the Court; as it is a place where things like Rules of Court, deadlines, and civil procedure are regularly ignored by litigants, court staff, adversaries, and judges.  The regularly-occurring debauchery that takes place in the FD division often goes unchecked, as the litigants tend to have less resources than the litigants moving through the FM docket, and as such, do not have the funds to attempt to take corrective actions such as filing motions for reconsideration or appeals. 

However, the Appellate Division recently reversed and remanded a trial court judge’s decision in an FD case which the judge transferred custody and set a parenting time schedule after mishandling the case in at least five major ways.  First, the Plaintiff’s attorney requested that, due to the gravity of the requested relief (a change in custody) that the matter be placed on a complex discovery schedule.  The judge rebuffed the attorney’s request by stating that “it’s an FD matter . . . . it’s not a divorce.”  The judge steadfastly held onto his completely baseless reasoning for denying discovery even when the attorney cited a Court Rule to support the request.  Second, the attorney attempted to speak on behalf of their client later in the proceedings, the judge silenced the attorney by stating “I’m asking [Plaintiff,] not you.”  Third, the judge did not allow the parties to cross-examine each other, even though they made wildly conflicting accusations about each other in their written submissions.  Fourth, the judge did not give the litigants the opportunity to call any witnesses, including Plaintiff’s mother, who had regularly provided childcare and who the parties sharply disagreed on her continued ability to do so.  Fifth, the judge failed to make fact-findings and failed to make his decision based upon the custody factors outlined in N.J.S.A. 9:2-4(c). 

The judge simply stated “here is what I am going to do…” before entering an order wherein he changed custody of the parties’ 4 year old child and set a parenting time schedule that he made up on his own.  The judge made no attempt to outline the statutory factors or explain his reasoning for the drastic change he was effectuating.  In addition to the five egregious mistakes, the Appellate Division remarked that the judge made several other mistakes, including not requiring the parties to attend mediation as per Court Rule, not requiring the parties to submit proposed parenting time plans as per Court Rule, and not holding a plenary hearing (which surely would have alleviated several of the larger issues that ultimately resulted in the judge’s inept decision.)

The Appellate Division found the trial court judge’s actions and decision to be so wrong that they reversed the judge’s order remanded the case back to the trial court with instruction to assign the case to a different judge.