Absent unfitness, when does a parent lose the right to custody of a child? Conventional wisdom informs us that custody may be lost in such a situation when it will further the best interests of the child. When does the court cease to make a best interest inquiry: at majority, upon emancipation, or at another time? The answer is difficult and close.
The object of the court's attention is Brian Johnson, age 18 (date of birth October 22, 1972), a high school senior, who is now living with his 22 year old sister in a rented apartment in Ramsey that is being paid for by his father. Brian moved out of his mother's (Carol Quinn's) home on December 1, 1990 and into this apartment after giving her five days' notice.
Mrs. Quinn seeks an order compelling her former husband to revoke his permission allowing Brian to live without a parent, compelling Mr. Johnson to continue to pay her child support, and requiring Mr. Johnson to cease paying support to Brian directly.
Mr. Johnson seeks an order relieving him of the obligation to pay Mrs. Quinn child support on behalf of Brian.
This post-judgment proceeding emanates from a 1983 judgment of divorce. In an uncontested matter, the parties entered into an oral property settlement agreement that was incorporated into the ultimate judgment. In that agreement, the parties determined that residential custody of the then-unemancipated children would be with Mrs. Quinn. However, they agreed to
". . . joint custody in the sense of consulting with one another about major decisions on health, education, and welfare."
Unquestionably, if the agreement still controls, to the extent that he precipitated Brian's move, Mr. Johnson breached at least the spirit of the agreement, since he made no attempt to consult with Mrs. Quinn before the modification of custody was
effectuated. Naturally, this begs the question of the efficacy of the agreement in light of Mr. Johnson's position that Brian's majority obviates the custody provisions of the agreement.
The parties' agreement provided for unallocated support of $45,000.00 per year, with its transformation into child support of at least $150.00 per week per child if the wife were no longer entitled to receive alimony*fn1 The parties agreed that they would be responsible to pay for the college educations of their children " in accordance with their then respective financial ability." (As part of the instant proceedings, Mr. Johnson has agreed that he shall be responsible for 100% of the college education expenses of Brian.) Ironically, they also agreed, " [t]he parties in all respects have been able to work out matters relating to their children and economic matters."
The current dispute is not the parties' first brush with post-judgment applications in the Family Part. There is already a plenary hearing scheduled to address, among other things, a claim for arrears by Mrs. Quinn. The plenary hearing was also intended to address the parties' respective responsibilities to pay for Brian's college education. The concession by Mr. Johnson ...