Black letter law is that to change a child support Order, the person seeking a modification must show a substantial and continuing change of circumstances. But what is the standard if there is a custody agreement, even if the agreement has no child support provisions, and then one party seeks child support?

One would think that given the age old concept that child support belongs to the child and the corollary that a parent can’t bargain away their child’s support, that this would be an easy answer. At least to one court it wasn’t which led the Appellate Division to have to chime in in the unreported (non-precedential) case of Sackstein v. Kukis decided on April 24, 2024

The facts are pretty straightforward. The parties had one children. Their relationship ended and in 2017, the court granted the parties 50-50 parenting time. Later that same year, the parties returned to court and defendant sought child support. The trial court found that it had insufficient information to decide the issue and ordered the parties to file Case Information Statements and that it would preserve the retroactive day to that date as long as defendant filed an application in 45 days. She didn’t file that application and thus, never received support.

In 2018, the matter returned to court and the court once again said that the matter may be relisted for a child support hearing once defendant served the plaintiff “with support documents consist with the pertinent court rules” whatever that means.

The parties returned to court regarding custody and parenting time in 2021 and an Order was issued in October of that year. Defendant’s cross motion at that time didn’t request child support. However, in November of 2022, defendant filed a motion to modify the 2021 Order and also establish child support. In the motion, she filed proper documents and also noted that plaintiff traditionally earned double of what she earned. The trial judge denied the request for child support finding that there was no change of circumstances, noting that defendant disregarded prior orders regarding supplying documentation – though also noting that “the issue just essentially went away” after the defendant failed to comply.

Defendant appealed and the Appellate Division reversed finding:

Those orders never established child support and a change in circumstances standard did not apply for this reason; defendant never moved to modify child support, but rather establish it.

The Appellate Division noted that even if the change of circumstances standard was applied, there was amply basis to find a change of circumstances.

The court also prefaced the decision on the well-settled law reference above, holding:

It is axiomatic that child support is a right that belongs to the child. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Both parents bear the obligation of child support. Pascale v. Pascale, 140 N.J. 583, 593 (1995). “[C]hildren are entitled to share in the current income of both parents.” Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, ¶ 1, (2024). To that end, our court rules state the guidelines “shall be applied when an application to establish or modify child support is considered by the court.” R. 5:6A. A court need not apply the guidelines where there is good cause not to, namely “factors which may make the guidelines inapplicable or subject to modification and [where an] . . . injustice would result from the application of the guidelines.” Ibid. However, the “guidelines must be used as a rebuttable presumption to establish or modify all child support orders. The guidelines must be applied in all actions, contested or uncontested, in which child support is being determined including . . . non-dissolution” matters. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, ¶ 2.

Of note, the Appellate Division also found fault with the 2017 Order requiring that Case Information Statements be filed because, as this was a non-dissolution action, the court rules require that a different financial disclosure unless the issue was spousal support or college contribution. That said, on remand, the issue of child support retroactivity was to only go back to when the 2022 motion was filed.

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or