A.N. ex rel. S.N. v. S.M., 333 N.J. Super. 566 (App. Div.), certif. denied, 166 N.J. 606 (2000) (August 1, 2000):

Under Filippone v. Lee, 304 N.J. Super. 301, 308-09 (App. Div. 1997), a minor cannot be considered emancipated by virtue of the birth of a child. Nevertheless, generally, a grandparent has no legal obligation to support a grandchild. There are exceptions when the grandparent obtains legal custody or guardianship or where the grandparent otherwise acts in loco parentis. See, e.g., Watkins v. Nelson, 163 N.J. 235, 253-54 (2000); Savoie v. Savoie, 245 N.J. Super. 1, 4 (App. Div. 1990). However, where no recognized exception applies, a grandparent/parent cannot be compelled to support the offspring of his unemancipated child. Savoie, supra, 245 N.J. Super. at 4; cf. Miller v. Miller, 97 N.J. 154, 158-62 (1984) (regarding step parents); see also Troxel v. Granville, U.S. , 120 S. Ct. 2054, L. Ed.2d (2000) (stating that grandparents have no right of visitation over objection of surviving parent).

N.J.S.A. 44:4-101 requires the father and mother of a child under eighteen who receives public assistance to maintain the child if they have sufficient ability. The statute also requires the children of a parent who receives public assistance to maintain the parent. Ibid. The statute further requires the spouse of one who receives public assistance to maintain the recipient spouse. Ibid. But the statute does not require grandparents to maintain grandchildren.

N.J.S.A. 44:1-140 parallels N.J.S.A. 44:4-101 with respect to municipal, county or joint welfare assistance. N.J.S.A. 44:1-140 requires that parents be responsible for the support of their children until 18 years of age. Significantly, that statute, as it stood prior to 1975, also placed the obligation on grandparents. In 1975 that obligation was eliminated. See Savoie, supra, 245 N.J. Super. at 5.

In this case, the court declined to find, in the absence of any legislative policy to support it, any obligation of a non custodial grandparent to support a grandchild, and this is so even though the grandchild is the offspring of an unemancipated minor.

The court further held that the “doctrine of necessaries” cannot be used to defeat the principle that a grandparent has no duty to support his non-custodial grandchild. The doctrine applies to parents and their children, not to grandparents and their non-custodial grandchildren. See Greenspan v. Slate, 12 N.J. 426, 430 (1953) (finding that “parents of an infant child are liable [to a medical doctor], in the absence of a contract, express or implied in fact, for necessaries furnished their child in an emergency”).

Nevertheless, in this case, the grandparent/parent may have an obligation of support under the unique facts of the case, which flow from the grandparent/parent’s own, independent responsibilities and decision making. Where the grandparent/parent did not want his son to be employed in order that he could improve, or at least maintain, his grades. Consequently, the grandparent’s son’s only income was his weekly allowance, and therefore was prevented from earning more income. See Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) (holding that “[t]he potential earning capacity of an individual, not his or her actual income, should be considered when determining the amount a supporting party must pay”). Hence, the limitations on the son’s ability to earn income is directly attributable to the grandparent’s own act and decision making. By exercising his parental discretion, which he had every right to do, it was foreseeable that the grandparent’s decision to prevent his son from increasing his income was also reducing the son’s ability to support his child, to the detriment of the grandchild. See, e.g., J.S. v. R.T.H., 155 N.J. 330, 337-39, 352 (1998); Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997).

Having limited the son’s ability to earn income, the grandparent must be responsible for the consequences of his own decision. Stated differently, after considering the son’s age and school obligations, the trial judge should impute income that the son could earn but for his father’s directions to the contrary, and the judge should direct the grandparent to pay the difference between the imputed amount and the amount that the son can afford to pay.

See related Blog Post, by Fox Rothschild LLP.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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