The financial impact upon children of a divorce or a separation among unmarried parents is almost certain. It is common sense to assume that it is more expensive to sustain two households than one household. In some circumstances however, one of the parties has family, usually parents, who are capable and willing to aid a grown child and the grandchildren being impacted by the divorce or separation, whether by providing non-monetary support such as shelter or by providing some monetary aid. The question is does such aid impact child support? Is the aid being provided considered an “available source of income”? 

There have been no New Jersey decisions squarely on point. However, in a 2000 Appellate Division decision, the Court plainly stated that “generally, a grandparent has no legal obligation to support a grandchild.” A.N. ex rel. S.N. v. S.M., 333 N.J. Super. 566 (App. Div. 2000), cert. denied, A.N. ex rel. S.N. v. S.M., Sr. ex rel. S.M., Jr., 166 N.J. 606 (N.J. 2000). In that case, the parents were unemancipated teenagers who had a child. The maternal grandmother filed a child support obligation against the unemancipated father and against the paternal grandfather who was providing financial support to the father. 

 

The A.N. decision notes two exceptions to the general rule that a grandparent has no legal duty to support the grandchild (1) when the grandparent obtains legal custody or guardianship or (2) where the grandparent otherwise acts in loco parentis. (Notably, prior to 1975, in certain circumstances a grandfather could be compelled to support a grandchild by statute. N.J.S.A. 44:1-140. That obligation, however, was eliminated by L.1975, c. 1, § 1, effective January 14, 1975. The statute now only requires a mother and/or father to support their child. In short, "…third parties are not legally responsible to pay support for children who are not theirs." 2 Skoloff & Cutler, New Jersey Family Law Practice § 5.1B(2)(a) at 5:21 (13th ed. 2008).  

 

While the A.N. ex rel. S.N. v. S.M. decision is clear that third-parties are not legally responsible for the support of a family member’s child, the true question in circumstances were aid is being provided by a family member is whether or not the Court should (or would) impute the aid being provided as income to the parent receiving such aid. There are arguments on both ends. 

 

The party receiving such aid can assert that such aid is not guaranteed– it could end– and to impute such aid as income in the calculation of child support would be to inappropriately inflate income for aid that is uncertain and would be inappropriately indirectly forcing third-parties to pay support where they do not otherwise have a legal obligation to do so. On the other hand, the other party could argue that such aid is an “available source of income” and that New Jersey statutes and decisions allow for calculation of child support based upon all available sources of income. 

 

The issue is difficult to address and it is likely to be determined on a fact by fact basis. The inquiry will center upon, among other things, the form of aid, how much aid is being provided, how often is the aid being given, how significant the aid is, the purpose of the aid, and the certainty of continuous receipt of aid. For example, in a case where the aid being provided is in the form of shelter, it is unlikely that this will have much impact on child support. However, in the case in which the aid being provided is a monetary cash stipend, the inquiry is much more complex. For example, how much is being provided, how long has it been provided and what is the certainty that it will continue to be provided. (This post does not consider monies being received by way of Trust funds as such funds would be considered an available source of income for purposes of calculating child support and comments upon actual cash that is being given.)

 

In short, whether or not a child support calculation will be affected by aid being providing to the supporting or dependent parent, is a difficult and complex issue to raise and undertake in Court proceedings especially. However, depending upon the circumstances, the argument may be raised.

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