Family Law Services Alert: New Jersey Appellate Division Rules COVID is Not a Permanent Change of Circumstances to Modify Support



As the COVID-19 pandemic first emerged, courts throughout the country struggled to balance once-in-a-lifetime global panic with long-standing well-developed legal precedent. Litigants, particularly in the matrimonial context, viewed the COVID-19 pandemic as an opportunity to obtain decisions deviating from the long-standing and well-developed body of law concerning issues of child custody, visitation, and support by simply citing generalized pessimism and fears about COVID-19.

One of the earliest post-COVID-19 decisions concerned a mother seeking to unilaterally withhold custody of a child citing nothing more than generalized fears about COVID-19. The Court held:

The mother has failed to articulate, submit evidence, or even allege any particularized health concern such that the Court would consider suspension of in-person visits. A generalized fear of the coronavirus crisis we all face is insufficient to severely limit and perhaps harm a child’s relationship with a parent. This pandemic is not to be used to limit access by a parent or to flout valid orders of the court. Rather, valid orders of the court must be followed during this crisis unless a parent can articulate specific health or safety risks, and can demonstrate to the Court that suspension of visits is warranted, which may be a heavy burden. S.V. v. A.J., 68 Misc.3d 330 (N.Y. Fam.Ct., Bronx County, May 7, 2020).

On January 25, 2022, New Jersey’s Appellate Division affirmed the denial of a father’s motion seeking a downward modification of child support based on a transient and temporary reduction in income due to the COVID-19 pandemic. Citing the trial judge’s reasoning, the Appellate Division echoed:

COVID-19 related reductions in salary are not sufficient to create a presumption of permanent changed circumstances. COVID-19 related reductions in salary have only existed since March 2020. There is no evidence, as states begin to reopen their economies, that salaries, such as [d]efendant’s will [not] rise to [their] pre-pandemic levels. Additionally, [d]efendant admits to the [c]ourt that he is currently in search of a higher-paying position. Defendant has failed to show a permanent change in circumstance[s] warranting a downward modification in child support.

Although [d]efendant is currently earning less than he did in 2017, the [c]ourt has neither enough current financial documents from [d]efendant, nor any proof of more than a temporary change in circumstance to warrant a downward modification in child support. Gerstrel v. Gerstrel, Docket No. A-4065-19, 2022 WL 211506 (N.J. App. Div., January 25, 2022) (emphasis added).

Citing Lepis v. Lepis, 83 N.J. 139, 151 (1980), the Court reasoned, “Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.” (emphasis added).

Gerstrel is significant for matrimonial practitioners because it sends a clear message to the bar that courts in New Jersey will maintain their commitment to a more disciplined approach of basing requests for modification on long-standing well-developed legal precedent over unsubstantiated fears about the future, and expressly reject the argument or suggestion that the economic consequences of the COVID-19 pandemic constitute a “permanent” change in circumstances absent any additional evidence supporting such a position.

If you have any questions about this alert, please contact:

Carl J. Soranno, Member and Chair, Family Law Services, at 973-403-3127 or

Angelo Langadakis III, Associate, Litigation, at 973-364-8359 or

*This is intended to provide general information, not legal advice. Please contact the authors if you need specific advice.

Related Practices:   Family Law Services

Related Attorney:   Carl J. Soranno