Monmouth County Div. of Social Services for D.M. v. G.D.M.

• Decision Date: 10 October 1997
• Parties: MONMOUTH COUNTY DIVISION OF SOCIAL SERVICES FOR D.M., n/k/a D.W., Plaintiff, v. G.D.M., Defendant.
• Court: New Jersey Superior Court

Page 83

308 N.J.Super. 83

705 A.2d 408

MONMOUTH COUNTY DIVISION OF SOCIAL SERVICES FOR D.M., n/k/a

D.W., Plaintiff, v. G.D.M., Defendant.

Superior Court of New Jersey,

Chancery Division,

Family Part,

Monmouth County.

Decided Oct. 10, 1997

[705 A.2d 409] Thomas H. Klein, Eatontown, for Monmouth County Division of Social Services (Patrick J. Boyle, Freehold, on the brief).

G.D.M. for defendant, Pro Se.

HAYSER, J.T.C., temporarily assigned.

Does a parent have an enduring and fundamental duty to support his or her children to the maximum degree possible? Alternatively, may a parent deliberately forfeit his or her parental rights, and leave his or her former spouse and/or the State and taxpayers to fulfill the duties which the forfeiting parent may be able, at least in part, to fulfill? Finally, does a custodial parent have standing to waive the right to collect child support at all? These are the principal questions set forth by this case, which intertwines public policy and taxpayer burden issues with the basic family court rubric of the "best interests of the child."

STATEMENT OF FACTS

The parties in this case were divorced by judgment dated June 30, 1982. On or about July 23, 1985, the judgment of divorce was amended by a consent order which terminated the father-defendant's parental rights, and relieved him of his support obligations for the one child born of the marriage.

Some time after the consent order was entered, the plaintiff-mother and the child began to receive public assistance, in part under N.J.S.A. 44:10-1 to 44:10-33. As a part of the application process for such assistance, the plaintiff assigned her rights to collect support for herself and her child to the Monmouth County Division of Social Services (hereinafter "the Division"), as required by N.J.S.A. 44:10-2. Now acting as an agent for plaintiff, the Division seeks to vacate the consent order, thus enabling it to seek contribution from the defendant towards support for the parties' child.

The July 23, 1985 consent order provides, at paragraph 2 that defendant "consents to the termination of any and all parental rights he may have with respect to the infant child of the marriage. Furthermore, the defendant shall have no rights of visitation with the infant child of the marriage." At paragraph 1 the same order provides that plaintiff "waives any and all rights to receive any child support from the defendant for the support and maintenance of the infant child of the marriage." This consent order did not contemplate an adoption of the child by any third party, nor was the State Division of Youth and Family Services (hereafter "DYFS") or any other agency involved.

In seeking to now vacate the consent order, the Division, on behalf of plaintiff, avers that New Jersey law prohibits the termination of parental rights, except in cases of adoption or placement by DYFS. The Division alleges that, in general, private contracts terminating parental rights are unenforceable in this state. In addition, the Division notes that the Lepis standard of child support adjustment supersedes any contract which may exist, and that changed circumstances of one or both of the parties allows a re-examination of the support obligations of the parties. It is lastly alleged that because child support axiomatically is intended to benefit the child, a parent cannot effectively waive prospective future rights to such support.

The court, having examined the facts at hand, is inclined to agree with the Division on several levels. At the most basic level, the policy of the Family Part of the New Jersey Superior Court mandates that the best interests of the child or children are a paramount consideration, and will ordinarily supersede any and all competing interests. Inherent in such a policy is an ongoing fundamental duty of all parents to provide support, to the extent possible, to their children. In addition, it is doubtful that a custodial parent has the requisite standing to waive what is essentially the child's right to support. Finally, the placement of a burden created by a private contract on the State, and ultimately the taxpayers, appears to deeply offend public policy. The court will address these concerns individually.

DUTY OF PARENT TO SUPPORT CHILD

The initial concern regarding the consent order is its apparent disregard for the "best interests of the child" of the marriage. "The duty of parents to provide for the maintenance of their children is a principle of natural law." Greenspan v. Slate, 12 N.J. 426, 430, 97 A.2d 390 (1953), citing 1 W. Blackstone Commentaries on the Laws of England (1765), 435-36 ¹.

In keeping with this, New Jersey courts have long held that a parent is bound to provide a child with necessities. See Tomkins v. Tomkins, 11 N.J.Eq. 512, 517-18 (Ch.1858); Kopack v. Polzer, 5 N.J.Super. 114, 117, 68 A.2d 484 (App.Div.1949), aff'd 4 N.J. 327, 328, 72 A.2d 869 (1950); Greenspan, supra, at 432, 97 A.2d 390; Grotsky v. Grotsky, 58 N.J. 354, 356-57, 277 A.2d 535 (1971); Ionno v. Ionno, 148 N.J.Super. 259, 261, 372 A.2d 624 (App.Div.1977); Lynn v. Lynn, 165 N.J.Super. 328, 342-43, 398 A.2d 141 (App.Div.), certif. denied 81 N.J. 52, 404 A.2d 1152 (1979). Today, "[a]s a general rule, a parent is obliged to contribute to the basic support needs of an unemancipated child to the extent of the parent's financial ability irrespective of the quality of the relationship between them." Martinetti v. Hickman, 261 N.J.Super. 508, 513, 619 A.2d 599 (App.Div.1993). Thus, the hopeful common law rule noted in Greenspan, above, thereby has become a realistic equitable principle as well.

Other jurisdictions similarly recognize the fundamental duty of every parent to support their children to the degree possible. Van Valkinburgh v. Watson, 13 Johns. 480, 7 Am.Dec. 395 (Sup.Ct.1816); Dee v. Dee, 169 N.Y.S.2d 789, 792-93, 9 Misc.2d 964, 967 (Brx.Cnty.1957) ("It is every child's birthright to be sustained and supported according to the means and station in life of his father."); State of Connecticut v. Boyd, 4 Conn.Cir.Ct. 544, 548, 236 A.2d 476, 478 (1967) ("The duty of a father to support his minor children is one of the most fundamental duties and obligations of life."); In re Kristina L., 520 A.2d 574, 579 (R.I.1987); Blue v. Blue, 532 Pa. 521, 529, 616 A.2d 628, 632 (1992); In re Bruce R., 234 Conn. 194, 202-03, 662 A.2d 107, 112 (1995); Wills v. Jones, 340 Md. 480, 667 A.2d 331 (Md.App.1995) ("This Court has repeatedly recognized, one of the most fundamental duties of parenthood is 'the obligation of the parent to support the child until the law determines that he is able to care for himself,' " quoting Carroll County v. Edelmann, 320 Md. 150, 170, 577 A.2d 14 (1990)).

Some courts have gone so far as to ground the parental duty of support in our federal Constitution. See, e.g., Pamela P. v. Frank S., 443 N.Y.S.2d 343, 110 Misc.2d 978 (Fam.Ct.1981). That court stated, "[C]learly, the duty of support fits into the legal framework as a reciprocal of the fundamental Constitutional right to beget and raise children ... Accordingly, this court views enforcement of the parental support duty as a compelling State interest ..." Id. at 347, 110 Misc.2d at 984-85, 443 N.Y.S.2d 343, citing U.S.C.A. Const., amend. 14.

The United States Supreme Court has visited the issue, and noted that "[w]hen parents make a commitment to meet those responsibilities [of parenthood], the child has a right to rely on the unique contribution of each parent to material and emotional support. The child therefore has a fundamental interest in the continuation of parental care and support." Bowen v. Gilliard, 483 U.S. 587, 612-13, 107 S.Ct. 3008, 3023, 97 L.Ed.2d 485 (1987). This fundamental interest, and the corresponding parental duty, is an inherent part of the "best interests of the child" rubric which underlies our family courts. Today, it is settled that the best interests of the child is the greatest and overriding consideration in any family court matter. Wilke v. Culp, 196 N.J.Super. 487, 483 A.2d 420 (App.Div.1984); Shambaugh v. Wolk, 302 N.J.Super. 380, 394, 695 A.2d 382 (Ch.Div.1996).

In keeping with the predominance of this concept, our courts have recently restated the principles of emancipation of a child, to reflect the ongoing and fundamental duty of parents to support their children. See, e.g., Filippone v. Lee, 304 N.J.Super. 301, 700 A.2d 384 (App.Div.1997). See also, Bishop v. Bishop, 287 N.J.Super. 593, 671 A.2d 644 (Ch.Div.1995); Quinn v. Johnson, 247 N.J.Super. 572, 589 A.2d 1077 (Ch.Div.1991).

These concerns with the interests of children are not merely rhetorical. New Jersey courts have long held that the policy behind case law and statutory requirements should be considered when deciding matters in the family court. In the Matter of the Adoption of Children by N.M., 96 N.J.Super. 415, 422, 233 A.2d 188 (App.Div.1967); In re T., 95 N.J.Super. 228, 236, 230 A.2d 526 (App.Div.1967). Thus, family courts are required to consider the "best interests" of the children, including their fundamental right to support, when making any decision which will possibly impact such interests.

None of this is to say that a parent owes a duty greater than he or she can feasibly provide. "The legal liability of the parent necessarily depends upon his or her ability to furnish the maintenance." Finch v. Finch, 22 Conn. 411 (Sup.Ct.Er.1853). The obligation of a parent is obviously limited by that parent's income and overall circumstances. Simply stated, the parent must do what he or she can do to provide for the child or children.

This court, like the above-cited courts, accordingly finds that every parent has a fundamental duty to support his or her children to the greatest extent that they can. In the case at bar, the defendant alleges that he currently has no income, and is presently living principally on his new wife's salary of $7.50 per hour. However, he...