What constitutes an overnight stay for child support purposes? | Fox Rothschild LLP


A previous post of August 22, 2010 defined “shared parenthood” by New Jersey standards, in particular: between 28% (104 nights) and 50% of nights with children. This comes directly from paragraph 14 (b) (1) and paragraph 14 (c) (2) of Annex IX-A to Rule 5: 6A. Calculating child support using a shared parenting worksheet results in a larger credit for overnight stays than calculating using a single parenting worksheet. Parties often dispute the way overnight stays are calculated for this same reason. What appears to be an otherwise simple task can become arduous and left to one’s preference in mathematics.

Fortunately, the Appeal Division attempted to eliminate these mathematical disparities in Alberto-Kolmer v. Kolmer, an unpublished ruling from November 10, 2021. The parties married in 2004 and divorced eleven years later in 2015. They shared joint legal custody in accordance with their child custody and property settlement agreement. The plaintiff was registered as the parent of the primary residence and the defendant as the parent of the secondary residence. The defendant initially filed an application to change joint physical custody in August 2018. Instead, he was granted a rotating weekly schedule in which he would have the children from Wednesday at 3:00 p.m. to Sunday at 7:00 p.m. during week 1 and from Thursday. . at 3:00 p.m. to Saturday at 11:00 a.m. in week 2. Attempts by the parties to arbitrate the recalculation of child support, due to the schedule change, were ultimately unsuccessful. The defendant filed an additional claim in which the plaintiff requested a recalculation of child support.

In oral argument on November 20, 2019, the plaintiff’s position was that the defendant spent four nights in week 1 and only one night in week 2; for a total of five nights. In support of her position, she informed the Court that subsection 14 (b) (1) applies and that the defendant does not have what constitutes a Friday-Saturday night during week 2 since the children are traded at 11:00 am on Saturday and it doesn’t have them for 12 hours or more. The Court responded by characterizing, albeit incorrectly, that subsection 14 (b) (1) is intended to apply to custody arrangements to determine whether the non-custodial parent has overnight stays. The defendant agreed. The plaintiff also argued that 6 statutory holidays should not constitute a credited night for the defendant.

As a result of this misinterpretation, the Court incorrectly determined that the defendant had 6 out of 14 nights during the school year, or 10 months per year. The judge then determined that there are 4.3 weeks in a month for 43 weeks, or 301 days. As a result, the defendant’s schedule was 129 nights out of a possible 301 during the school year. She then added 21 days for equal parenting time during the summer for a total of 150 nights to the Applicant’s 215 nights. The claimant contested that 6 statutory holidays should not be considered overnight stays in this calculation. The court ordered the parties to submit 365-day calendars highlighting the days they had the children as one night.

A December 17, 2019 order set child support at $ 161 per week retroactively from February 1, 2019 to June 30, 2019. Thereafter, due to the defendant no longer receiving Medicare credit children, child support would be set at $ 218. per week. The ordinance recited the previous calculation of the nights judge and did not deduct the holidays which the plaintiff believed the defendant should not be entitled to as a credited night; the Court based this particular decision on paragraph 13 (b) (2) of Annex IX-A to Rule 5: 6A, as the public holidays were intermittent and did not constitute five (5) consecutive overnight stays.

More than five months passed before the plaintiff filed an application to vary the order of December 17, 2019. She sought to change the calculation of child support due to the defendant’s tax reporting status being “Married” and credit him with only 121 nights to recalculate child support. The court order of June 26, 2020 agreed to recalculate based on the status of the tax return, but denied the plaintiff’s request to change the calculations overnight. The request was also dismissed as a motion for a late and out of time reconsideration to appeal.

The plaintiff then appealed the order of June 26, 2020, in part because the court erred in interpreting the overnight stays and therefore incorrectly set child support. The Appeal Division accepted. Immediately, given the extent of overnight stays for the defendant, the Appeal Division ruled that the defendant was entitled to a calculation as part of the shared parenting worksheet. The parties disputed whether the defendant had 5 or 6 nights in a 14-day period. Based on the plaintiff’s calculations, he had 4 nights in week 1 and 1 night in week 2. Conversely, the defendant calculated that he had 4 nights in week 1 and 2 nights in week 2. The Appeal Division found that the Court had correctly credited 21 nights for Summer Parenting Time and several statutory holidays. However, the Appeal Division found that the Court had abused its discretion by ignoring the definition of overnight stay in accordance with paragraph 14 (b) (1) of Annex IX-A to Rule 5: 6A.

In doing so, the Appeal Division set aside and remanded an additional proceeding in order to correctly calculate the overnight stays retroactively to the Applicant’s May 2020 filing. The Appeal Division estimated that the defendant spent over 12 hours with the children every Thursday, Friday, Saturday and Sunday during week 1 – for a total of 4 nights. However, in week 2, Friday is the only day he spends more than 12 hours with the kids – for a total of 1 night. The Court, in saying, stated that if the pickup was on Saturday at 12:01 am instead of 11:00 am then it would be 2 nights in week 2.

The most important thing to remember is that a parent who spends 12 or more hours with their children on a given day constitutes a night in accordance with paragraph 14 (b) (1) of Annex IX-A to Rule 5: 6A. This should be taken into account when determining pick-up and drop-off times, in addition to game times and children’s times. Obviously, according to the reasoning of the Court, an hour difference can have a significant impact on the amount of child support that will be awarded.

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