Modification of Child Support Orders
Interstate travel has become common and as parties, with children, move from one state to another, a family law practitioner must be prepared to address and advise clients as to the extent or limitations of New Jersey to modify an interstate support order. This article is to give guidance to the basic modification procedures set forth in the Uniform Interstate Family Support Act, UIFSA, which applies to child support. UIFSA does not authorize modification of spousal support orders but has the authority to enforce a spousal support order of another state or to initiate enforcement of its spousal support order in another state. Therefore, New Jersey shall retain exclusive jurisdiction to modify the spousal support order it entered throughout the existence of the support obligation. It follows that New Jersey shall not modify a spousal support order entered by another state.[i]
New Jersey has continuing jurisdiction to modify an initial child support order, the controlling order, and to exercise continuing exclusive jurisdiction if New Jersey is the residence of the obligor, obligee, or the child to whom the child support order applies.[ii] It, therefore, follows that New Jersey does not have jurisdiction to modify a child support order issued in another state so long as the obligor resides in the issuing state, even if the obligee and child have moved to New Jersey and are residents of New Jersey.
The parties may, however, consent in a consent order or in court to New Jersey continuing to have exclusive jurisdiction even if the parties or child no longer reside in New Jersey.[iii] In Lall v. Shivani, 448 N.J. Super. 38, 49 (App. Div. 2016), the parties consented on the record to New Jersey modifying its prior child support order by both appearing at the New Jersey hearing, thereby both parties consented to New Jersey’s continued exercise of jurisdiction.
New Jersey may not exercise exclusive continuing jurisdiction to modify its child support order if (1) all of the parties file consent on the record in this state, that a court of another state that has jurisdiction over (a) at least one of the parties who is an individual or (b) that is located in the state of residence of the child that may modify the order and assume exclusive continuing jurisdiction[iv] or (2) New Jersey’s order is not the controlling order.[v]
Once a court of another state has issued a child support order that modifies a child support order of which New Jersey was the issuing state pursuant to UIFSA or a substantially similar law, New Jersey shall recognize the exclusive continuing jurisdiction of the other state.[vi] Keep in mind that New Jersey may serve as an initiating court to request a tribunal of another state to modify a support order issued in that state[vii], and a temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create exclusive continuing jurisdiction.[viii]
New Jersey does not have jurisdiction to modify any aspect of a child support order that may not be modified under the laws of the issuing state.[ix] This includes emancipation and contribution to college expenses. Therefore, when consulted regarding enforcement or modification of a child support order, always confirm that whether New Jersey is the initiating state or if the first order(s) entered in the matter arose out of an action in another state. For example, assume that the parties are from Philadelphia, separated and the initial child support order was entered in Pennsylvania. Assume that the parties then moved to New Jersey when the child was four years old. Now, the child is eighteen and getting ready for college. New Jersey does not have jurisdiction to delay emancipation until the child graduates from college, as the law of the issuing state limits the duration of the obligation of child support.[x] See also Philipp v. Stahl, 172 N.J. 293 (2002), “Pursuant to UIFSA, New Jersey does not have jurisdiction over an application to require the former husband, a Georgia resident, to contribute to his daughter’s college expenses because Georgia maintains continuing, exclusive jurisdiction over the original support order entered in Georgia in 1993.”
Article 7 has been added to UIFSA to address support orders entered under the Hague Convention. New Jersey does not have jurisdiction to modify a Convention child support order if the obligee remains a resident of the foreign country that the initial order was entered unless the obligee submits to the jurisdiction of this state expressly or by defending on the merits without objection to jurisdiction at the first available opportunity.[xi]
[i] N.J.S.A. 2A:4-30.139
[ii] N.J.S.A. 2A:4-30.133(a)(1)
[iii] N.J.S.A. 2A:4-30.133(a)(2)
[iv] N.J.S.A. 2A:4-30.133(b)(1)
[v] N.J.S.A. 2A:4-30.133(b)(2)
[vi] N.J.S.A. 2A:4-30.133(c)
[vii] N.J.S.A. 2A:4-30.133(d)
[viii] N.J.S.A. 2A:4-30.133(e)
[ix] N.J.S.A. 2A:4-30.178(c)
[x] N.J.S.A. 2A:4-30.171
[xi] N.J.S.A. 2A:4-30.194(a)(1)