The Canning case has dominated the news in New Jersey and points beyond over the last two weeks.  You know, the so-called “spoiled teen” that moved out of her parents house, and among other thing, sued to have them pay for college.  Robert Epstein has blogged on it several times on this blog. While it was reported today that the matter may have been amicably resolved, the trial judge and legal pundits far and wide spoke of her uphill battle to succeed in the case.

 

Graduation Concept Stock PhotoPhotos courtesy of freedigitalphotos.net

But why?  The pundits again point to the constitution.  The constitution, they say, prevents government from intruding in the care and parenting decisions of fit parents.

Page one of the original copy of the Constitution

But we know that government can act to prevent harm.  There are laws governing car seats, education and a whole host of other things that infringe on a parents rights as to their children.  Fit parents cannot provide alcohol to their children before they are of legal age. In fact, we know from the grandparent visitation cases, that the constitutionally protected decisions of fit parents to deny grandparental access can be overcome by a showing of harm to the children.  Some of the pundits have suggested that children of divorced parents will be harmed if their parents are not compelled to pay for college – that’s not quite right – but query why children of in tact families can be harmed if their parents refuse to pay for college – and that is ok – but children of divorce need some special protection from the exact same “harm”?

So where does the obligation for college come from?  The Supreme Court case of Newburgh v. Arrigo is most often cited as the basis for this.  Though I have read the case dozens of times over the years, I read it again when the Cannings invaded our consciousness. Here is what Newburgh actually says:

Generally parents are not under a duty to support children after the age of majority. Nonetheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children. 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. …

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 costs. Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should 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. (Emphasis added)(internal citations omitted).

So does Newburgh speak to harm?  No, it says that college education is a necessary.  Does the case limit the obligation to provide this necessary to a divorce?  I don’t know – as noted above, the case simply notes that the issue frequently arises in the context of divorce.  You could certainly argue that Newburgh doesn’t limit the issue to divorce cases.  But then Newburgh speaks to the concept that the obligation attaches to those who are “financially capable” (often honored in the breach because many judges have treated the obligation for college absolute even without financial capability but that is an issue for another day.)  That said, if the standard is financial capability, one could argue that in tact families are likely more capable that divorced families where the same income that once supported one household now has to support two homes.  If college is a necessary, does the denial of payment for college rise to the level of harm?

This leads me back to the question raised in the title – why do parents who are divorced have to pay but parents in in tact families do not?  I know, I know, the Constitution.  Maybe just maybe, the harm standard can be raised to overcome a fit parents decision to deny a child of this necessary.

Finally, the constitutional attack is rarely raised in this way, but from time to time, is raised by divorced parents who are forced to pay for college.  The court usually avoids deciding this issue.  That said, in many other states (and NJ is in the minority of states that require parents to pay for college), the obligation to pay for college was struck down on constitutional grounds – i.e. there is no basis to compel the obligation for divorced parents but not married parents.

While the Cannings may now be in our rear view mirror, hopefully for them and for the rest of us, I expect that this debate may rage on.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

  • Michael Boulette

    Great discussion. I blogged about a similar question here http://tinyurl.com/l2gxn4q. I do think this divide between the obligations of married parents and the obligations of separated parents is a really interesting one, even beyond the constitutional equal protection debate. If we accept that children should have access to parental resources to pay for college based solely on parental means (rather than parental values), then the distinction between divorced and married parents seems to fall apart. Great contribution.

  • PopperlinRosebud

    Again, great article. The more I read about this the more I’m enraged. The court said that college is “necessary”?? And on that basis it required the parents to pay?? That makes absolutely no sense. Food and water is necessary… Many other things are pretty much necessary in today’s world. This brings entitlement to a new level. Unreal!

  • PopperlinRosebud

    On a different article I commented that the court’s decision to require a divorced parent to pay for college and not a married parent may be based primarily on the “unjust” that would result to the compassionate/reasonable divorced parent who decides to pay for their kid’s college. Many stubborn parents would refuse paying for any college knowing that the other parent will just pay the whole thing because they don’t want their child being disadvantaged while their personal estate remains high. As a result, one parent pays for all of college and depletes an estate that was previously cut in half by divorce. I can see a court making such a decision (knowingly or not) based on a particular case not realizing how significant it could be in the future when neither parent wants to pay for an undeserving child’s college tuition. This must end.