NJSBA Family Law Section

Dear Colleagues,



I know there is a statutory rule of "no retroactive child support modification" as between parents. However, I represent a grandparent who is the legal guardian of a child, based on substance abuse by the child's bio mother and father. Grandma has day to day responsibility for this 7 year old child, and has done this work for 5 years, uncompensated.



Query:



May Grandma seek retroactive child support from the natural parents?



Thanks in advance for your responses.



Hanan


Hanan M. Isaacs, Esq.

t 609.683.7400 f 609.921.8982
e [email protected] w www.hananisaacs.com
4499 Route 27, Kingston NJ


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I'm pretty sure the anti-retro CS statute applies to all child support
orders.

If it's the initial Order establishing child support, you could argue there
is no modification and, therefore, the statute does not apply and CS will
be retro to initial date of transfer of custody to the third party.

Also, the legislative intent of the anti-retro CS statute was to prevent
"deadbeat" parents from using loopholes of interstate child support
enforcement laws to avoid their child support and then coming in later to
effectively cancel or minimize their CS obligation. (see Keegan v. Keegan,
326 N.J. Super. 289 (App. Div. 1999) - great overview of the history/intent
of the statute from Bowens v. Bowens, 286 N.J. Super. 70 (App. Div. 1995)).


Also, I believe CS can be retroactively increased, just not decreased.
Again, see Keegan - "nothing in the legislative history suggests that the
law was enacted to protect parents from retroactive modifications
increasing support obligations where equitable." (citing Lanza v. Lanza,
268 N.J. Super. 603 (Ch. Div. 1993) (allowing a retoro increase in the
support obligation). Obviously, the cases are extremely fact sensitive
and, in my experience, judges will apply the anti-retro statute to
everything (including alimony modifications, but without saying they are
applying the statute)

One issue you may face is Ohlhoff v. Ohlhoff, 246 N.J. Super. 1 (App. Div.
1991) - change in residence of a child with respect to whom there is an
outstanding support order does not automatically abrogate a support
obligation. The parties have to agree upon a termination or modification
of support and the supporting parent is required to obtain court approval
(by motion or consent order) before terminating or reducing the support for
a child that presently resides with that parent.

In your case, depending on the specific facts, it appears the former
custodial parent could argue that the change was temporary and therefore
the anti-retro CS statute applies per Ohlhoff.

It's an interesting issue, I'd look forward to hearing how it turns out.


Gregory Thomlison, Esq.
Law Office of Stacey D. Kerr, Esq.
650 Washington St.
Suite 1C
Toms River, NJ 08753
Ph. (732) 736-8100

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On Wed, Sep 30, 2015 at 5:57 PM, Hanan Isaacs via New Jersey State Bar


Original Message------

Dear Colleagues,



I know there is a statutory rule of "no retroactive child support modification" as between parents. However, I represent a grandparent who is the legal guardian of a child, based on substance abuse by the child's bio mother and father. Grandma has day to day responsibility for this 7 year old child, and has done this work for 5 years, uncompensated.



Query:



May Grandma seek retroactive child support from the natural parents?



Thanks in advance for your responses.



Hanan


Hanan M. Isaacs, Esq.

t 609.683.7400 f 609.921.8982
e [email protected] w www.hananisaacs.com
4499 Route 27, Kingston NJ


IMPORTANT NOTICE: This email transmission and any documents, files, or email messages attached to it, are confidential and protected by the attorney-client privilege and/or work product doctrine. If you are not [email protected], or a person responsible for delivering it to the intended recipient, then we hereby notify you that any review, disclosure, copying, dissemination, distribution, or use of any of the information contained in or attached to this email transmission is STRICTLY PROHIBITED. If you have received this transmission in error, then please immediately notify [email protected] by email -- or by fax to (609) 921-8982 -- or by telephone to (609) 683-7400 -- and then promptly delete the message and any attachments from your computer. Thank you.

Gregory,



The Appellate Division took that position in Ohlhoff because children's sudden moves from one parent to the other are frequently reversed, whether by parents or children or both.



This has been 5 years of continuous custody by the grandmother.



I told her about the anti-modification public policy involving parents. I just never dealt with a grandparent custody case, where there was no pre-existing child support order. The "new" order is prospective, but is it retroactive as well, or could we argue for it?



Is there any authority for that retroactive request?



Hanan


Original Message------

Dear Colleagues,



I know there is a statutory rule of "no retroactive child support modification" as between parents. However, I represent a grandparent who is the legal guardian of a child, based on substance abuse by the child's bio mother and father. Grandma has day to day responsibility for this 7 year old child, and has done this work for 5 years, uncompensated.



Query:



May Grandma seek retroactive child support from the natural parents?



Thanks in advance for your responses.



Hanan


Hanan M. Isaacs, Esq.

t 609.683.7400 f 609.921.8982
e [email protected] w www.hananisaacs.com
4499 Route 27, Kingston NJ


IMPORTANT NOTICE: This email transmission and any documents, files, or email messages attached to it, are confidential and protected by the attorney-client privilege and/or work product doctrine. If you are not [email protected], or a person responsible for delivering it to the intended recipient, then we hereby notify you that any review, disclosure, copying, dissemination, distribution, or use of any of the information contained in or attached to this email transmission is STRICTLY PROHIBITED. If you have received this transmission in error, then please immediately notify [email protected] by email -- or by fax to (609) 921-8982 -- or by telephone to (609) 683-7400 -- and then promptly delete the message and any attachments from your computer. Thank you.

Hi Hanan. You could make an equitable argument for it, but the better
course might be for the grandmother to seek kinship legal guardianship
status.

Roz

Rosalyn A. Metzger LLC
Attorney-Mediator
P. O. Box 5104
One Leigh Street
Clinton, New Jersey 08809
(908) 238-0099
[email protected]
www.mediate.com/rmetzger

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Original Message------

Dear Colleagues,



I know there is a statutory rule of "no retroactive child support modification" as between parents. However, I represent a grandparent who is the legal guardian of a child, based on substance abuse by the child's bio mother and father. Grandma has day to day responsibility for this 7 year old child, and has done this work for 5 years, uncompensated.



Query:



May Grandma seek retroactive child support from the natural parents?



Thanks in advance for your responses.



Hanan


Hanan M. Isaacs, Esq.

t 609.683.7400 f 609.921.8982
e [email protected] w www.hananisaacs.com
4499 Route 27, Kingston NJ


IMPORTANT NOTICE: This email transmission and any documents, files, or email messages attached to it, are confidential and protected by the attorney-client privilege and/or work product doctrine. If you are not [email protected], or a person responsible for delivering it to the intended recipient, then we hereby notify you that any review, disclosure, copying, dissemination, distribution, or use of any of the information contained in or attached to this email transmission is STRICTLY PROHIBITED. If you have received this transmission in error, then please immediately notify [email protected] by email -- or by fax to (609) 921-8982 -- or by telephone to (609) 683-7400 -- and then promptly delete the message and any attachments from your computer. Thank you.

Grandma sought KLG and lost, without prejudice.
She is the child's legal custodian by court order.
Hanan




Original Message------

Dear Colleagues,



I know there is a statutory rule of "no retroactive child support modification" as between parents. However, I represent a grandparent who is the legal guardian of a child, based on substance abuse by the child's bio mother and father. Grandma has day to day responsibility for this 7 year old child, and has done this work for 5 years, uncompensated.



Query:



May Grandma seek retroactive child support from the natural parents?



Thanks in advance for your responses.



Hanan


Hanan M. Isaacs, Esq.

t 609.683.7400 f 609.921.8982
e [email protected] w www.hananisaacs.com
4499 Route 27, Kingston NJ


IMPORTANT NOTICE: This email transmission and any documents, files, or email messages attached to it, are confidential and protected by the attorney-client privilege and/or work product doctrine. If you are not [email protected], or a person responsible for delivering it to the intended recipient, then we hereby notify you that any review, disclosure, copying, dissemination, distribution, or use of any of the information contained in or attached to this email transmission is STRICTLY PROHIBITED. If you have received this transmission in error, then please immediately notify [email protected] by email -- or by fax to (609) 921-8982 -- or by telephone to (609) 683-7400 -- and then promptly delete the message and any attachments from your computer. Thank you.

If the initial order granting custody did not address child support, then I
think you can make the argument. Practically speaking, I'm not sure a judge
will grant 5 years of retro cs. If your client can provide specific
expenses with receipts, I think that might be a safer course (I'd ask for
both retro cs and reimbursement for day care, medical, regularly iccring
expenses, etc.)
On Sep 30, 2015 7:08 PM, "Hanan Isaacs via New Jersey State Bar


Original Message------


Grandma sought KLG and lost, without prejudice.
She is the child's legal custodian by court order.
Hanan

Thanks for all your advice, both online and off.

Very helpful.

Hanan
Hanan M. Isaacs, Esq.

t 609.683.7400 f 609.921.8982
e [email protected] w www.hananisaacs.com
4499 Route 27, Kingston NJ


IMPORTANT NOTICE: This email transmission and any documents, files, or email messages attached to it, are confidential and protected by the attorney-client privilege and/or work product doctrine. If you are not NJSBA_familylaw_98f86898-0714-48f8-907c-c574f139a795@ConnectedCommunity.org, or a person responsible for delivering it to the intended recipient, then we hereby notify you that any review, disclosure, copying, dissemination, distribution, or use of any of the information contained in or attached to this email transmission is STRICTLY PROHIBITED. If you have received this transmission in error, then please immediately notify [email protected] by email -- or by fax to (609) 921-8982 -- or by telephone to (609) 683-7400 -- and then promptly delete the message and any attachments from your computer. Thank you.


Original Message------

If the initial order granting custody did not address child support, then I
think you can make the argument. Practically speaking, I'm not sure a judge
will grant 5 years of retro cs. If your client can provide specific
expenses with receipts, I think that might be a safer course (I'd ask for
both retro cs and reimbursement for day care, medical, regularly iccring
expenses, etc.)
On Sep 30, 2015 7:08 PM, "Hanan Isaacs via New Jersey State Bar

As a former judge I would also be concerned about creating a situation where the parents could not pay because the motion was not brought earlier and they then would be subject to enforcement proceedings including arrest.

Marquis


Original Message------

Thanks for all your advice, both online and off.

Very helpful.

Hanan
Hanan M. Isaacs, Esq.

t 609.683.7400 f 609.921.8982
e [email protected] w www.hananisaacs.com
4499 Route 27, Kingston NJ


IMPORTANT NOTICE: This email transmission and any documents, files, or email messages attached to it, are confidential and protected by the attorney-client privilege and/or work product doctrine. If you are not NJSBA_familylaw_98f86898-0714-48f8-907c-c574f139a795@ConnectedCommunity.org, or a person responsible for delivering it to the intended recipient, then we hereby notify you that any review, disclosure, copying, dissemination, distribution, or use of any of the information contained in or attached to this email transmission is STRICTLY PROHIBITED. If you have received this transmission in error, then please immediately notify [email protected] by email -- or by fax to (609) 921-8982 -- or by telephone to (609) 683-7400 -- and then promptly delete the message and any attachments from your computer. Thank you.

Well, at the end of the day, Grandma stood in emotionally and financially for her daughter and the child's father. She had no obligation to pay, and they did.

I think the equities balance in her favor, not theirs.

Hanan
Hanan M. Isaacs, Esq.

t 609.683.7400 f 609.921.8982
e [email protected] w www.hananisaacs.com
4499 Route 27, Kingston NJ


IMPORTANT NOTICE: This email transmission and any documents, files, or email messages attached to it, are confidential and protected by the attorney-client privilege and/or work product doctrine. If you are not NJSBA_familylaw_60f4d6c5-eac5-45c9-ba57-3af2b0901f21@ConnectedCommunity.org, or a person responsible for delivering it to the intended recipient, then we hereby notify you that any review, disclosure, copying, dissemination, distribution, or use of any of the information contained in or attached to this email transmission is STRICTLY PROHIBITED. If you have received this transmission in error, then please immediately notify [email protected] by email -- or by fax to (609) 921-8982 -- or by telephone to (609) 683-7400 -- and then promptly delete the message and any attachments from your computer. Thank you.


Original Message------

As a former judge I would also be concerned about creating a situation where the parents could not pay because the motion was not brought earlier and they then would be subject to enforcement proceedings including arrest.

Marquis