Common Questions About Child Support
by Alicia Hutchinson, Esq. (Mount Laurel, NJ Office)
Q: I’m paying child support. Shouldn’t that entitle me to more parenting time? OR My ex isn’t paying enough child support, so I don’t have to let him/her see the child, right?
A: These are extremely common questions, as are some closely related ones—like “if my ex behind in his child support, will he get in trouble if I let him see our daughter?” and “if I give my ex sole custody, do I still have to pay him child support?” Child support, custody and parenting time are all separate issues. It is true that they impact each other, sometimes greatly. For example, a non-custodial parent’s child support obligation will almost always be far lower if he or she has three overnights with the child each week as opposed to three overnights per month. Likewise, failing to exercise parenting time for a long time can cause someone to lose joint legal custody of their child.
That being said, failing to pay child support doesn’t mean a parent can’t have parenting time with his or her child. Failure to exercise parenting time does not excuse one from paying child support, and volunteering to give up joint custody of a child likewise does not get a non-custodial parent off the proverbial hook. While child support, custody, and parenting time can all impact one another, they are separate issues and will be treated as such by a court.
Q: My co-parent is suddenly asking for child support even though we agreed when we split that neither of us would ever ask for child support. They can’t do that, can they?
A: There is a fancy legal term for this idea: estoppel. Estoppel is where a party is prevented from taking an action they are entitled to take, because it would produce an unjust or inequitable result. It’s one of the very first legal concepts most law students learn about, because it hits directly on ones sense of fairness. This doctrine gets applied when a party has reasonably relied on the promise made by another and has suffered some kind of harm as a result because the other party didn’t hold up their side of the promise.
Unfortunately, it doesn’t apply when a parent decides to seek child support despite a prior agreement not to do so. This is because in New Jersey, the right of child support belongs to the child and not the custodial parent. Pascale v. Pascale, 140 N.J. 583, 591, (1995). Therefore, a parent cannot waive their child’s right to child support. That means that even you and your co-parent at one time agreed that there would be no formal child support obligation, the custodial person (even if not one of the biological parents!) can always apply for child support. Indeed, if the custodial parent ever goes on certain forms of public assistance, the county welfare agency will automatically do so on their behalf!
Q: I pay child support, so I should get to claim our child on my taxes every other year, right? It’s not fair for the custodial parent to get to do it every year.
A: There is no easy answer to this question. It depends, and some of what it depends on may not be in your control.
Section 152(e)(1) of the Internal Revenue Code grants the custodial parent with the right to the dependent deduction for a qualifying child subject to waiver, meaning that the custodial parent can choose to release the deduction to the other parent. In New Jersey, the Courts can also order the custodial parent to release the deduction, either every year or based on some schedule (like alternating years.) Gwodz v. Gwodz, 234 N.J. Super. 56 (App. Div. 1989). Gwodz also lays out criteria for the judge to consider when ordering a custodial parent to release the deduction. The most important thing about the ability of New Jersey courts to determine who gets the deduction is that it is discretionary, meaning the judge doesn’t have to do it but may choose to when they feel it is appropriate. They are more likely to view it as appropriate when it will maximize the parents’ combined net income and make more money available to the support of the child. Heinl v. Heinl, 287 N.J. Super. 337, 352- 53 (App. Div. 1996); Gwodz v. Gwodz, 234 N.J. Super. 56, 61-62 (App. Div. 1989). Of course, if the custodial parent is agreeable to waiving the deduction or splitting it with the non-custodial parent—and many are—then that is almost always fine with the court.
If you have any questions of your own about child support, or other legal matter, give us a call at 856-227-7888 or email email@example.com to schedule a free consultation.
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The above is not specific legal advice nor does it create a lawyer-client relationship. Do not rely upon it without consulting an attorney to see how the information presented fits your unique circumstances.