Edward R. Weinstein, Esq.

Can Child Support Be Waived By An Agreement In New Jersey?

No. Child Support under New Jersey law is clear that child support is intended for the “child” and not the “parent.” Therefore, the lawyers at our law firm in East Brunswick, New Jersey understand that as the child support is legally for the “child,” a parent cannot waive the money as it is not theirs to waive.

In Conte v. Ainsworth, the parties had one child, a daughter, born in 1992. After the child was born, the parties consented to an agreement that included a parenting time schedule and an amount the father was to pay the mother each week in child support. The father agreed to pay the mother child support each week until the parties’ daughter was emancipated, meaning when she would be legally recognized as an adult. The father never utilized his parenting time and did not see the parties’ daughter until she was an adult. At the time of the trial, the father was paying $330 per week in child support toward the parties’ daughter, who is presently twenty-five years old.

In the parties’ agreement, the parties determined that their daughter would be emancipated when she finished her college education. The agreement did not specify if the parties would contribute financially toward college or graduate school. The parties’ daughter graduated from Caldwell University in May 2015 with a degree in psychology and art. Throughout her college education, the child suffered from severe anxiety and depression, and was treated with therapy and medicine. The parties’ daughter lived at home with her mother while she attended college. In September 2015, the parties’ daughter enrolled in a two-year Master’s program for mental health counseling at Caldwell University. The child planned to continue living at home with her mother while attending graduate school.

The father decided, on his own, to reduce the child’s weekly child support one month after she graduated from college. The father reduced his child support obligation from $330 per week to $250 per week. In August 2015, the father filed a motion with the Superior Court of New Jersey, Family Part to emancipate the parties’ daughter. The mother filed a cross-motion seeking to require the father to pay $390 per week in child support, pay $880 in back pay, and pay fifty percent of the child’s graduate school costs. The mother also sought to have the father reimburse the child fifty percent of the total loans the child borrowed to pay for the last two years of college, which totaled $10,647.50, to provide financial statements, and pay attorney’s fees. The mother indicated that it would cost the child approximately $16,000 per year for graduate school, but did not mention if the child was seeking to take out student loans. Further, the mother stated that her only source of income was food stamps and Social Security benefits totaling $1,470 per month. Also, the mother paid for the child’s food and living expenses with the money she received from the weekly child support payments. The mother noted that the father was a licensed dentist, but she had no knowledge of his salary.

The trial court granted the father’s motion to emancipate the parties’ daughter. The trial court also terminated the father’s child support obligation. The court found that the parties’ agreed that the child’s emancipation would occur upon graduation from college, which would terminate child support, and that the agreement did not make any reference to graduate school. The trial court noted that other considerations would need to be made ordinarily under the laws of emancipation, but the parties’ agreement determined the conditions of the child’s emancipation.

On appeal, the mother argued that the court was wrong to grant the father’s motion to emancipate the child. Specifically, the mother argued that the court was mistaken to only consider the parties’ agreement to determine if the child was emancipated. The mother contends that the court should have also determined if the father was required to contribute financially toward the child’s graduate school costs. Lastly, the mother argued that the trial court failed to address other issues she raised in her cross-motion. On the other hand, the father argued that the parties entered into a binding agreement in 1992 regarding emancipation. The father also argued that he is not required to contribute financially to the daughter’s graduate school costs because he did not have a relationship with the daughter and she did not discuss her graduate school plans with him; therefore, the father maintains that he is not required under the law to contribute.

The New Jersey Appellate Division noted that it reviews the essential legal principles on appeal. The Appellate Division refers to the factual findings of the trial court, unless the trial court’s factual findings are not supported by significant and reliable evidence. The Appellate Division further noted that there is a societal expectation that parents must support their children until they are adults, regardless if they live with a parent or on their own. Parents are expected to contribute within the scope of their financial ability. The Appellate Division stated that the right to child support belongs to the child, meaning that a parent cannot waive this right on behalf of the child. A child’s right to support cannot be terminated simply because both parents agree that the child should be emancipated. Furthermore, a child’s right to child support cannot be waived a terminated by a settlement agreement. If a parent wants to terminate child support by emancipating a child, the parent must demonstrate proof of emancipation to the court. After argument from the other parent, the court then determines if a child is emancipated.

The Appellate Division stated that emancipation is determined if the child has achieved independent status and moved beyond the parents’ influence. To make this determination, the court must evaluate the child’s need, resources, interests, family contributions, as well as other factors. Generally, support is not required for a child over eighteen, unless the child needs additional support because the child is enrolled full-time in college or even graduate school. If a child has not been emancipated, the court should determine if the child has an aptitude for college and the extent to which the parents can contribute toward a college education.

The Appellate Division found that the parties’ agreement could not waive the child’s right to child support. The Appellate Division found that the lower court was, therefore, required to determine if the child was emancipated based on the child’s independence, need, resources, and educational activities. The court also stated that courts must determine if either parent is required to contribute to the child’s higher education under the Newburgh factors, which list factors to determine if a parent need to contribute to a child’s educational costs. The Appellate Division noted that the father did not maintain a relationship with the child, which is a factor under Newburgh, and must be considered in the determination. The court also found that the trial court did not address the mother’s other issues on appeal including back pay and attorney’s fees.

Therefore, the Appellate Division reversed the lower court’s decision to emancipate the parties’ daughter and terminate the father’s child support obligation. The Appellate Division held that the lower court, on remand, must determine if the child is emancipated and if the parents need to contribute toward the child’s higher education based on the Newburgh factors, as well as the other issues the mother raised on appeal.