A CHILD'S RELIGIOUS SCHOOLING - A MATTER OF INTERPRETATION OR SOMETHING MORE?
In Feldman v. Feldman, an interesting new unreported (not precedential) opinion from the Appellate Division, the Court addressed the issue of a child's religious education, and whether the parties had already settled the extent of such education in their previously entered custody and parenting time agreement. It is only coincidental that the parties here share the last name Feldman, since it was an earlier reported Appellate Division decision of the same name holding that the Parent of Primary Residence - defined as providing a residence for a child for more than 50% of overnights annually (or, if sharing is equal, providing the residence for the child while the child is attending school) has the right to determine the child's religious upbringing and education.
Here, the parties were divorced in 2005, coming to terms on a custody and parenting time agreement that provided Mom with the ability to make "all decisions regarding the child," (except when the child was in his care) and that she would "give advance notice" to Dad as to major decisions so as to give him enough time to voice any objection or file a motion in court. The parties also acknowledged in a separate provision that the child attended Jewish day school and that she would continue to do so. To that end, the parties also agreed to cooperate with the school in providing all financial information so as not to impact enrollment. Separately, the trial court appointed a parenting coordinator to assist the parties with issues regarding the child.
A variety of post-judgment motions were filed, largely revolving around the child's continued attendance at the religious school - Solomon Schechter - and the parties' ability to pay for same. Mom wanted to enroll the child in public school for the sixth grade, but was denied. The trial court took issue with Mom's meeting with the public school without notifying dad, as well as her involvement of the child in the decision - going against the parenting coordinator's advice.
Dad subsequently filed an Order to Show Cause to compel Mom to pay for her share of past-due tuition at Solomon. Mom was unemployed and again asked that the child be enrolled in public school. Interesting was the trial court's decision on its own in deciding the applications to interpret the parties' agreement as to religious school to terminate after the child completed the eighth grade.
On appeal of Dad's motion for reconsideration of the Order, which was denied, the Appellate Division reversed and remanded for a "speedy" plenary hearing as to the child's schooling and their intent as to the language in the custody and parenting time agreement. The Appellate Division found that the trial court's decision to interpret the language of the agreement was "unsolicited" and "premature," especially since it did not truly take testimony with the ability for cross-examination, and also because Mom did not argue her intent in reaching the agreement, but rather argued that it was no longer feasible for the child to attend due to the current distance of the residence from the school and the cost. As a result, the trial court on remand was to determine the parties' intent as to the child's religious education.
Also interesting in its decision was the Appellate Division's indication that, on remand, the trial court had to consider the fact that the Mom had unilaterally enrolled the child in public school and what sort of disruption that would cause - this despite the fact that Dad had appealed that very issue. While the prevailing standard in such a decision as to public or private school is to minimize conflict to the child while also giving effect to the parties' reasonable agreement, it would seem that Dad would already be at a disadvantage on the remand because of the public school enrollment.
The Appellate Division also made certain notable statements regarding the parenting coordinator, including its decision overriding the P.C.'s advice not to involve the child in the issue (adding to Dad's seeming disadvantage), as well as its indication that the trial judge is more suited to interview the child, rather than an expert, due to the tight timing involved. The Appellate Division seemed to nullify the P.C.'s role in its decision, including affirmance (without stated reasons) of the trial court's execution of the Order, which also prevented Dad from engaging the P.C. should he take issue with Mom's decisions as to the child's dad-to-day activities.
When adding Mom's argument as to distance and cost, as well as a consideration that the child is already in public school and that she should be involved in the issue via interview with the trial judge, it appears that the parties' intent in the original custody and parenting time agreement will taking a backseat in the overall determination.
So the child now goes to public middle school. But what about his religious education (Hebrew school in preparation to be Bar-Mitzvahed)? That is what I understand the term "religious education" to mean.
TO: All Divorced and Non-Custodial Parents Being Forced To Pay Higher Education For Children In New Jersey. The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children’s education as they deemed fit. It’s time to write to your Legislator to amend the current injustice that has plagued our State. By way of background and research, I state the following:
New Jersey Court system has determined that emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child. Cafaro v. Cafaro, 118 N.J.L. 123, 124, 191 A. 472 (E. & A. 1937); Limpert v. Limpert, 119 N.J.Super. 438, 440, 292 A.2d 38 (App.Div.1972). Emancipation can occur upon the child's marriage, Leith v. Horgan, 24 N.J.Super. 516, 518, 95 A.2d 15 (App.Div.1953), induction into military service, Slep v. Slep, 43 N.J.Super. 538, 543, 129 A.2d 317 (Ch.Div.1957), by court order based on the child's best interests, N.J. Div. of Youth & Family Serv. v. V, 154 N.J.Super. 531, 536-537, 381 A.2d 1241 (J. & D.R.Ct.1977), or by attainment of an appropriate age. Although emancipation need not occur at any particular age, a rebuttable presumption against emancipation exists prior to attaining the age of majority, now 18. See N.J.S.A. 9:17B-3. Attainment of age 18 establishes prima facie, but not conclusive, proof of emancipation. Alford v. Somerset Co. Welfare Board, 158 N.J.Super. 302, 310, 385 A.2d 1275 (App.Div.1978); Limpert v. Limpert, supra, 119 N.J.Super. at 440, 292 A.2d 38; **1038 Straver v. Straver, 26 N.J.Misc. 218, 222, 59 A.2d 39 (Ch.1948). Whether a child is emancipated at age 18, with the correlative termination of the right to parental support, depends upon the facts of each case.
A review of our sister States provides conclusive proofs of emancipation and do not depend on facts of each case:
State Age of Majority
Alabama 19
Alaska 18
Arizona 18
Arkansas 18 or graduation from high school, whichever is later
California 18
Colorado 18
Connecticut 18
Delaware 19
District of Columbia 18
Florida 18
Georgia 18
Hawaii 18
Idaho 18
Illinois 18
Indiana 18
Iowa 18
Kansas 18
Kentucky 18
Louisiana 18
Maine 18
Maryland 18
Massachusetts 18
Michigan 18
Minnesota 18
Missouri 18
Mississippi 21
Montana 18
Nebraska 19
New Hampshire 18
New Mexico 18
Nevada 18, or if still in high school at 18, 19 or graduation, whichever comes sooner
New Jersy 18
New York 18
North Carolina 18
North Dakota 18
Ohio 18 or graduation from high school, whichever comes first
Oklahoma 18
Oregon 18
Pennsylvania 18
Rhode Island 18
South Carolina 18
South Dakota 18
Tennessee 18 or graduation from high school, whichever is later
Texas 18
Utah 18 or graduation from high school, whichever is earlier
Vermont 18
Virginia 18 or graduation from high school, whichever is latest
Washington 18
West Virginia 18
Wisconsin 18, or if still in high school at 18, 19 or graduation, whichever comes sooner
Wyoming 18
Generally parents with intact families are not under a duty to support children after the age of majority. To put things into perspective, it would be absolutely absurd to create laws to force parents with intact families to pay college for their children. Yet, in many circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children, but only with divorcing or non-custodial parents. Frequently, the issue of that duty arises in the context of a divorce or separation proceeding where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education. In those cases, courts have treated “necessary education†as a flexible concept that can vary in different circumstances. Khalaf v. Khalaf, 58 N.J. 63, 71-72, 275 A.2d 132 (1971) (directing father to pay $3,200 per year towards son's college expenses); Limpert v. Limpert, supra, 119 N.J.Super. at 442-443, 292 A.2d 38 (father directed to continue weekly support payments for 20-year-old son as long as son was full-time student in regular courses towards undergraduate degree); Nebel v. Nebel, 99 N.J.Super. 256, 261-263, 239 A.2d 266 (Ch.Div.), aff'd o. b., *544 103 N.J.Super. 216, 247 A.2d 27 (App.Div.1968) (on motion of wife, husband ordered to pay $1,500 per year towards son's college costs); Jonitz v. Jonitz, 25 N.J.Super. 544, 556, 96 A.2d 782 (App.Div.1953) (although finding that the facts did not warrant an award solely for college expenses, court ordered continued support of son while son enrolled as student); Cohen v. Cohen, 6 N.J.Super. 26, 30, 69 A.2d 752 (App.Div.1949) (in dicta, court noted broad power to award support including costs of an advanced education in appropriate cases); Sakovits v. Sakovits, 178 N.J.Super. 623, 630, 429 A.2d 1091 (Ch.Div.1981) (court declined to order father to pay school expenses of 22-year-old son because son waited four years to begin college, had accepted $3,200 from father to start a business, and father had relied on son's expressed intent not to go to college in structuring his finances); Ross v. Ross, 167 N.J.Super. 441, 444-446, 400 A.2d 1233 (Ch.Div.1979) (father directed to continue weekly support payments for 23-year-old daughter until she
completed law school); Schumm v. Schumm, 122 N.J.Super. 146, 148-150, 299 A.2d 423 (Ch.Div.1973) (father's motion to vacate support order when son reached 18 denied because son in college); Hoover v. Voightman, 103 N.J.Super. 535, 539-540, 248 A.2d 136 (Cty.Ct.1968) (father ordered to continue support payments to all children, including 18-year-old college freshman).
As our Family Courts have recognized, in the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone. State, county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reasonable (now overwhelming) costs. There are millions of intact families who can or can not pay higher education costs for their children, some can pay in part, and still others can pay the entire cost of higher education for their children. Yet, Family Courts in New Jersey routinely require only divorcing or non-custodial parents, not intact families to contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school.
In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of
the child for the requested education; (8) the financial resources of the child, including assets owned **1039 individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
For far too long, our New Jersey Family Court System has never come under judicial scrutiny from our State Assembly and Senate. The law requiring separated, divorced, or unmarried parent, but not married parents, to provide postsecondary education support to their adult children violates the equal protection clause of the Fourteenth Amendment; absent an entitlement to postsecondary education, or generally applicable requirement that parents assist their adult children in obtaining education, the State of New Jersey by and through it’s Family Court System has no rational basis to compel parents from nonintact families, but not intact families, to provide for postsecondary educational support for their children. U.S.C.A. Const.Amend. 14
The law quoted above, flunks this fundamental constitutional test. It places citizens into different classes based on a criterion wholly unrelated to the case law objective, which is to assure that a college students need for financial support from parents is fulfilled.
The plight of an adult child of divorced parents, attending
college and in need of parental support, is in no way different from the plight of an adult child of married parents, also attending college and in need of parental support. Young adults who need parental support for college and whose parents are
divorced are not "more needy" simply because their parents are divorced, in contrast to adult children in like circumstances whose parents happen to be married. Likewise, young adults in the same situation whose parents are married are not "less needy" simply because their parents are married. Need is need; it should not be contingent on the marital status of the needy students parents.
By limiting its application to only one class of parents
and young adults attending college, based not on the financial need of the adult student alone but also on the marital status of the adult students parents, New Jersey Case Law establishes distinctions that are wholly unrelated to the legitimate state interest that the case law purportedly seeks to advance.
The New Jersey Family Court system imposes a legal obligat-
ion on certain class of parents of college age young adults in need of support while effectively granting an immunity from such liability to intact married families of college age young adults equally in need of support, based simply on the marital status of the parents, irrespective of the actual financial needs of the student or the financial abilities of the parents. Put simply, that just doesn’t make sense.
A Pennsylvania Supreme Court struck down a similar provision mandating post-majority support as a violation of the Constitution’s Equal Protection Clause. It reasoned that since married parents do not have to support their adult children,( as with intact families in New Jersey) it was discriminatory to force divorced parents to do so. See Curtis v. Kline, 666 A.2d 265 (Pa. 1995.
As Representatives of this State, all of you swore an oath to uphold the Constitution. The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The United States Supreme Court has long recognized that the Amendment's Due Process
Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests."
The liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their children -- is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court. In Meyer v. Nebraska, 262 U.S. 390 (1923), the Court held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." A few years later, in Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Court again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." The Court explained in Pierce that "the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."
In subsequent cases also, the Court have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972) ("It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'"); Wisconsin v. Yoder, 406 U.S. 205(1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition".)
In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children’s education as they deemed fit. I respectfully submit that since married parents can not be forced to support their adult children with higher education, it is discriminatory and unconstitutional to force divorced parents or noncustodial parents to do so. Moreover, N.J.S.A. 9:17B-3. is ambiguous on it’s face as it establishes prima facie emancipation, but not conclusive proof of emancipation.