The benefits of enrolling children in extracurricular activities are endless. Not only do they learn how to play a sport or musical instrument, but also soft skills and valuable life lessons, such as teamwork, the importance of practice and how to handle loss and disappointment. Thus it is not uncommon for kids today to participate in a variety of extra-curricular activities, ranging from athletics and arts, to educational pursuits. Of course, with each additional activity, comes the added expense of not only participating in the activity but the time and cost of allowing a child to perfect his or her talents, including transportation, equipment, private tutoring or lessons. The list is endless. Not surprisingly, the issue over who will be responsible for funding these additional activities can become quite contentious for divorced couples, especially when the parties disagree over which activities are“worth” pursuing over others.
Traditionally, a non-custodial parent will not be required to pay additional child support for a child’s extra-curricular activities because the basic child support award under the New Jersey Child Support Guidelines takes these costs into account when child support is calculated. Notably, the basic child support award under the New Jersey Child Support Guidelines includes expenses for “housing, food, clothing, transportation, entertainment, unreimbursed health care up to and including $250.00 per child per year, and miscellaneous items.” Pressler, N.J. Court Rules, Comment 8 on Appendix IX-A to R. 5:6A at www.Gannlaw.com (2016). Entertainment expenses are defined as “fees, memberships and admissions to sports, recreational or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.”
Nonetheless, the Appendix permits that “because some child-related expenses represent large or variable expenditures . . . it is not appropriate to include them in basic child support awards.” Pressler, N.J. Court Rules, Comment 9 on Appendix IX-A to R. 5:6A at www.Gannlaw.com (2016). In other words, there may be scenarios where there are specific expenses that are both predictable and recurring, which might be approved by the Court and not included in the basic child support award to assist in the “special needs” of gifted children.
But how does one measure giftedness? Must a child show that they are the next Michael Phelps or Misty Copeland, or might it be sufficient for a child to simply stand out as the “star” athlete, actor or student in their local community to qualify for additional support beyond that of the guidelines?
Until recently, there was little by way of case law which helped to identify and define what might constitute a “gifted” child. Of course every parent thinks their child is extraordinary but what happens when a Court is left to define whether a child is “gifted” or skilled enough to possibly warrant one parent paying more in his or her child support? Certainly when it comes to athletics, measuring a child’s talent and strengths is a fairly easy, objective task. However, when it comes to more subjective activities, such as the arts, including acting and painting for example, beauty truly is in the eye of the beholder.
In the recently published opinion of P.S. vs. J.S., Judge Jones of Ocean County took to offering further explanation and guidance as to how New Jersey Courts might define a child’s “giftedness” in circumstances where the non-custodial parent, or parent of alternate residence, might be required to pay additional support.
In P.S., the parties’ daughter, whom the Court fictitiously named “Julie”, was heavily involved in theater and acting. The parties did not disagree over their desire to foster her pursuits, however the question at issue was whether the child was “gifted” to warrant an award beyond the father’s basic child support amount. The father argued that the costs to support Julie’s acting were covered under his basic child support obligation.
Judge Jones addressed how Appendix IX-A (discussed above), typically accounts for extra-curricular activities, consistent with the father’s argument. He then however, went on to confirm that Comment 9(d) of the Guidelines, allows for the Court to “add supplemental funds to guideline-level support to help defray expenses for the development and special needs of a “gifted” child.” The idea being that if a Court “…deems a child to be “gifted” regarding a particular field or discipline, then it may be financially fair, equitable and appropriate for a court, upon application of a parent, to add a reasonable additional earmarked stipend onto both parents’ basic support obligation to help defray the costs of developing, enhancing and encouraging growth of the child’s giftedness in a specific area.”
Which brings us to the crux of the case: how does one measure “giftedness”? Judge Jones noted the difficulty in engaging in such an exercise, explaining that “the term “gifted” is arguably vague, broad, and left undefined in the Guidelines.” As to Julie’s case specifically and her fundamental interests in acting, Judge Jones reasoned that there was no other way for a Court to determine whether someone was “gifted” in acting, other than by way of subjective opinion, which “is simply not a reliable point of focus”. In other words, a Court could not be expected to engage in the task of watching every child act in a school play to determine whether a child is gifted, nor would the Court’s opinion be any more or less valid than the next person’s.
Instead, Judge Jones offered a different approach, commenting that “giftedness does not solely and exclusively apply only to one’s inborn talents or untapped natural skills, but also to one’s self-discipline, ability and willingness to commit and work hard and diligently towards a specific goal. Drive can itself be a gift. A person may be blessed with all kinds of natural talent and abilities in a particular discipline or field. If, however, he or she is unmotivated or unwilling to exert the necessary discipline and perseverance necessary to truly develop and advance such skills, then the person may not truly be truly gifted at all, but simply another individual with a squandered and wasted potential.” What seemed to sway Judge Jones in ultimately concluding that Julie was gifted, was the fact that he had interviewed her twice in the course of two years, and during both interviews she demonstrated enthusiasm, excitement and passion for her love of acting and was able to articulate her dedication and commitment at fostering her talents.
Just because a child is “gifted” however, does not mean Courts should look to the non-custodial parent as an endless checkbook to fund the child’s talents. Rather, Judge Jones cautions that a child’s giftedness and the non-custodial parent’s requirement to contribute additional funds must be weighed against both parents’ financial ability to contribute, specifically noting that the added obligation “…must be reasonable as relating to the parties’ financial circumstances and budgets. For this very reason, there is often a practical logic to placing a reasonable annual cap on such expenditures, rather than authorizing same on an open-ended basis.”
So what’s the takeaway from P.S. v. J.S.? The case of “Julie” is just one scenario and filled with its own unique set of facts, suggesting as previously, that determining when and under what circumstances a court might be inclined to deviate from the child support guidelines, occurs on a case by case basis. At a minimum, the case has opened a new set of avenues (and challenges) for measuring “giftedness”, offering that pure, genuine, objective talent might not always be required when defining what constitutes a “gifted” child. Regardless of how a court makes this determination, if a child is deemed “gifted”, the chances of paying an amount of support above and beyond the guidelines seems likely.