Law Lessons from BULLWINKEL v. BULLWINKEL, Appellate Division, A-2095-05T5, December 7, 2006:

The law is well established that both parents have an obligation to provide for the support of their child, N.J.S.A. 2A:34-23, and, further, that the receipt of child support is the right of the child. Pascale v. Pascale, 140 N.J. 583, 591 (1995); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). The State, in exercising its parens patriae interest, assures support for all unemancipated children despite their parents’ divorce. The obligation to provide for a child’s support will not be obviated by the noncustodial parent’s failure to maintain ties with his child, Martinetti, 261 N.J. Super. at 513, or lessened due to the custodial parent’s interference with parenting time. See Pascale, 140 N.J. at 592; see also Daly v. Daly, 21 N.J. 599, 609 (1956).

Rule 5:3-7(a) provides remedies to address a party’s violation of an order for parenting time. These remedies include:
(1) compensatory time with the children;
(2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent;
(3) modification of transportation arrangements;
(4) pick-up and return of the children in a public place;
(5) counseling for the children or parents or any of them at the expense of the parent in violation of the order;
(6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
(7) participation by the parent in violation of the order in an approved community service program;
(8) incarceration, with or without work release;
(9) issuance of a warrant to be executed upon the further violation of the judgment or order; and
(10) any other appropriate equitable remedy.

Only in rare circumstances have courts imposed economic sanctions reducing the amount of support as a result of the custodial parent’s improper frustration of the noncustodial parent’s parenting time. See, e.g., Brennan v. Brennan, 187 N.J. Super. 351, 357 (App. Div. 1982); Parivash v. Yousef, 94 N.J. Super. 403, 408 (App. Div. 1967); Smith v. Smith, 85 N.J. Super. 462, 467 (Juv. & Dom Rel. Ct. 1964). Use of such a remedy is not favored and has been employed only after other efforts have failed to address egregious lapses.

The breadth of discretion set forth in Rule 5:3-7(a) grants a Family Part judge the authority to employ varying remedies, including the imposition of monetary sanctions or an award of costs, which might “sting” the recalcitrant litigant to assure compliance with orders. The rule, however, does not authorize the termination of the legal obligation to pay support for an unemancipated child, which is generally against public policy. See Ridley v. Ridley, 290 N.J. Super. 152, 159-60 (Ch. Div. 1996). Thus, a noncustodial parent’s obligation to provide for his child’s support is not dependent upon the unfettered exercise of the right of parenting time. Id. at 160.

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