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Plenary Hearing Ordered to Determine Children’s Primary Residence

May 15, 2018

WILLIAM H. MONE reports on a recently published decision from the Superior Court of New Jersey, Appellate Division.

A New Jersey man appealed the denial of his child support modification motion for his two college-aged children, and the Appellate Division remanded the case back to the trial court for a plenary hearing as to the disputed residence of the children while not living on campus.

The father filed an application to eliminate his child support obligation for his two children enrolled in college. In doing so, he asserted that he was the children’s parent of primary residence, as the children lived with him while not living on campus while at college. Both children submitted signed affidavits with the father’s application, indicating that they were indeed living with him during college recesses. The father also claimed that the children’s college expenses were paid from a trust fund and further argued that any further payment of child support to the mother created a windfall for the mother.

The children’s mother, who was receiving child support from the father, opposed the motion and claimed that the children lived with her, but later acknowledged that one of the children did not. She further claimed that she still paid the children’s living expenses while they were at college.

The trial court ordered a plenary hearing as to the children’s disputed college expenses and declined to consider the affidavits submitted by the children because the children's involvement in their parents' litigation was "inappropriate." The parties eventually reserved the college expenses issue, and no hearing was conducted. The father appealed the Court’s ruling, as the parties were unable to resolve the child support dispute with regard to which parent was actually the parent of primary residence.   

The Appellate Division deferred to the trial court’s discretion in declining to consider the children's affidavits and found that the dispute about the children's primary residency while not living at college created factual issues, which warranted a plenary hearing. The Appellate Division remanded the case back to the trial court for a hearing on the issue.

Please contact William H. Mone if you have any questions or need assistance in connection with this subject.