Many parents want to believe their children are “gifted,” but do they know that this “giftedness” may increase their child support obligations?

Judge Jones’ new published (precedential) opinion, P.S. v. J.S. highlighted the distinction between a regular old “extra-curricular activity” and the pursuits of a “gifted” child, reaffirming that, where a child is “gifted,” the Court may deviate from the Child Support Guidelines to award supplementary child support in order to foster that child’s talents and providing some guidance on how the Court might assess whether a child is “gifted” in a particular area.

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In many cases, the issue of extra-curricular activities is a big one.  Parents want their children to be able to enjoy sports, dance classes, acting lessons, singing lessons, and so on and so forth.  Most parents agree that such activities are important for a child’s enrichment and development.  However, there is often a question over whether the child support payor should contribute to these activities over and above his or her basic child support payment.

In P.S. v. J.S., the parties acknowledged that their daughter loved to act and that they wanted to support her theatrical endeavors.  The only question was whether the non-custodial parent’s child support payment already covered the cost of the daughter’s acting activity, or whether there should be an additional contribution over and above the child support payment.

In his opinion, Judge Jones began by recognizing that the Child Support Guidelines do, in fact, contemplate that the guidelines-based child support award will cover “entertainment expenses,” defined by law to include:

…fees, memberships and admissions to sports, recreational or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.

Thus, “extra-curricular” activities are technically covered by a child support award calculated under the Child Support Guidelines.

But just when you think Judge Jones is going to “zig,” he “zags.”  Judge Jones went on to note that Comment 9(d) of the Child Support Guidelines

…expressly provides that the Court may in fact add supplemental funds to guideline-level support to help defray expenses for the development and special needs of a “gifted” child.  Under the guidelines, if a court deems a child to be “gifted” regarding a particular field or discipline, then it may be financially fair, equitable and appropriate for a court, upon application of a parent, to add a reasonable additional earmarked stipend onto both parents’ basic support obligation to help defray the costs of developing, enhancing and encouraging growth of a the child’s giftedness in a specific area.

The Court further held that the supplemental funds awarded to advance a gifted child’s development  “must be economically reasonable, with significant deference to each parent’s financial situation and actual ability to pay.”  In other words, there must be limits commensurate with the parents’ financial abilities.

The question, then, became whether the child at the center of the case was merely interested in acting as an extra-curricular activity, or whether she is a “gifted” actress.  Judge Jones opined that a child’s giftedness will generally relate “to a child’s aptitude , abilities and/or achievements” in one of four areas:  Academics, Athletics, Technology, or The Arts (though he did not foreclose other areas of “giftedness” outside these general categories).  In the particular case before Judge Jones, he found that the child in question was in fact “gifted” at acting.  As a basis for this ruling, he seemed to primarily rely upon two (2) interviews he had with the child approximately two years apart, and his observation that her dedication to and enthusiasm for acting had only seemed to grow in that time.  His decision did not, however, rest upon any sort of evaluation of her acting skills, as he acknowledged in his opinion that he had not observed her perform.  The decision suggests that a determination of a child’s giftedness may not rest upon his or her actual skill level alone.  In my opinion, the criteria for determining whether a given child is gifted will be tested and refined by further cases addressing this distinction between an extra-curricular activity and a gifted child’s pursuit.  Stay tuned…


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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