In many divorce matters, attorneys, clients and judges alike must determine how to deal with the issue of support for children, oftentimes which includes the divvying up responsibility for payment of college expenses.

There is a large body of case law in New Jersey that deals with this very issue and provides guidance as to how a court should decide the issue of payment of towards college, if parties cannot come to an agreement on their own.  However, each case is fact sensitive and must be considered on its own merits.

In a recent unpublished Appellate Division decision entitled Novy v. Novy, A-4207-07T2, decided January 12, 2009, the Court remanded the issue of whether a child was in fact emancipated and not entitled to financial support from her parents towards the cost of her college education.

Mother and father were divorced in 2001.  Incorporated in their Property Settlement Agreement was the requirement for father to pay child support to mother until the children were emancipated.  The Agreement went on to state what would be deemed an emancipation event such that same would trigger the termination of father’s support obligation for that child.

The parties’ daughter has experienced mental health and personal adjustment problems for many years. She didn’t graduate high school but later earned her GED. She has been attending Ocean County Community College since fall 2006.  At the same time she began college, she moved out of her mother’s home and into the home of a friend’s family.

In July 2007, father filed a motion with the court seeking to have daughter emancipated based on her residence away from her mother and her failure to attend college as is delineated in the Agreement reached by the parties.  That application was denied, however the court did rule that if daughter failed to make continuous progress toward the completion of her college education, including registering and completing not less than 12 credits/semester, father’s obligation to support her would terminate.

Some 6 months later, father and mother entered into a Consent Order, which declared that both parties agreed daughter was emancipated and father’s support obligation was terminated.  Shortly after this agreement was reached, daughter filed her own motion with the court seeking to intervene and vacate the Order declaring her emancipated.

Father was the only one who opposed this application and in his Certification he set forth several allegations upon which he determined daughter to be emancipated.  Daughter, in her responding Certification denied these allegations.  The trial court granted daughter’s motion to intervene and vacated the Consent Order into which her parents entered and agreed that she was emancipated.

Father appealed that Order.  On appeal, the Appellate Division noted that the determination of whether a child was emancipated depended on the facts of each case.  Furthermore,it has already been determined by the Appellate Division that “merely because both parents are united in their determination to declare the child emancipated” may not defeat the child’s right to support.  Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989).  The Court noted that the essential question to be answered is whether the child has “moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.”  Fillipone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).

Because the trial court heard no testimony about the disputed facts relevant to daughter, the Appellate Division held that the trial court erred in failing to conduct an evidentiary hearing to resolve those contested facts and remanded to the trial court to conduct such a hearing.

Despite the agreement reached by and between mother and father that daughter is now emancipated, father may still have a duty to provide financial support for daughter, to be determined by the outcome of the plenary hearing.  While daughter had no say in the original agreement reached by her parents and in the Consent Order they later entered into, she did have the right to file an application with the court on her own behalf seeking relief from the obligation that arises out of the parent-child relationship.  A child’s right to support cannot simply be contracted away by that child’s parents.  Parents have an obligation to support their children and in NJ this duty of support may include payment for college.