It is not uncommon for divorcing parties or parties who may have never married but share a child in common to face the issue of the costs of childcare.  In a time and economic climate where more often than not, both parents must work to support a household, payment of child care costs is an issue that must be addressed.

When calculating the Child Support Guidelines, which is the method NJ courts use when determining how much child support one party will pay to another for a child or children, part of the consideration allowed is a credit for child care costs paid.  It is not necessary that the cost of child care be included in the Guidelines calculation, as sometimes there are situations where parties will negotiate payment of this expense outside of the Guidelines calculation.

However, when it is included in the Guidelines calculation, it is reflected in its own line item on the calculation sheet and will increase the amount of the support calculation.

With that said, the Appellate Division in a recent unpublished decision addressed the issue of whether the expense for child care costs is considered child support and thus not subject to retroactive modification pursuant to NJSA 2A:17-56.23a.  To read the entire decision, click here.

NJSA 2A:17-56.23a states in part: “No payment or installment of an order for child support, or those portions of an order which are allocated for child support….shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.

In English, the statute basically tells litigants that if you file an application to reduce child support for whatever reason, the court can only grant the reduction for the time period as far back as when the application was served on the other party.  The retroactivity will only go as far back as the notice was given of the application.

In the recent unpublished decision referenced above, the father filed an application to reduce his child support payments, which included a credit for child care, based upon the fact that the child was no longer in day care.  As of September 1, 2007, the child had started a regular school program.  Father, however, did not file his application for reduction until June 2008 and requested that the modification be retroactive to September 2007, when the child began school and not when he filed his application.  On appeal, father argued that the day care expenses are not governed under NJSA 2A:1756.23a because they are not “child support”.

Both the trial court and the Appellate Division rejected this argument.  The court held that day care expenses are comparable to college expenses but are even more clearly part of the child support obligation.  “Their payment is necessary to allow the parent with primary residential custody to earn income that will determine her financial obligation to support the child.”  Cushman v. Losasso, A-0692-08T3, Decided September 24, 2009.

If you are considering filing an application to reduce or terminate a child support award, be wary that you will only be allowed retroactive relief from the time your application is filed.

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