In a new published (precedential) decision, Ricci v. Ricci, the Appellate Division addressed an adult child’s (an oxymoron, I know) request for her divorced parents to contribute to her college education expenses. Going  back to basics, the Appellate Division reminded us that – before any determination about a divorced parent’s obligation to contribute to college education expenses can be made – a threshold question must be answered, namely: Is the child emancipated?

The Facts

The pertinent facts are as follows:

  • Maura and Michael Ricci divorced when their daughter, Caitlyn, was four (4) years old.  As Caitlyn grew older, she engaged in some less-than-responsible behavior.  This is not in dispute.  Caitlyn graduated from high school in June 2012, at which time it was determined by Caitlyn’s parents that – due to said irresponsible behavior – Caitlyn wasn’t ready to go away to college and live on her own.  Therefore, Maura and Michael agreed that Michael would pay for the summer and fall semesters of community college; Caitlyn attended as a part-time student while continuing to live with her mother.
  • In Winter 2012, Maura and Michael agreed, as a way of testing the waters as to Caitlyn’s readiness to live on her own, that Caitlyn would  participate in the Disney College Program in Florida.  Within a month of starting the program, Caitlyn was expelled for underage alcohol use.
  • This is where the facts get a bit murky.  Maura and Michael say that, after Caitlyn’s expulsion from the Disney College Program, they wanted her to return to community college on a part time basis to complete her associate’s degree and outlined for Caitlyn a program of school, counseling, and work (i.e. a part time job) in order to instill discipline and a sense of responsibility in her.  Caitlyn viewed these expectations as unreasonable and impossible.  What is undisputed is that at this point, Caitlyn moved out of her mother’s home and in with her grandparents.  In Michael and Maura’s views, this move was intended as a rejection of their parenting and their attempts to help Caitlyn.  In Caitlyn’s view, her parents’ unrealistic demands “pushed her beyond the sphere of parental influence.”
  • In March 2013, after Caitlyn moved out, her parents agreed that Caitlyn was emancipated.  They entered into a consent order accordingly.
  • Months later, Caitlyn, still enrolled in community college, filed a motion to intervene in her parents’ divorce matter and sought continued support from her parents; specifically, their contribution to her community college tuition.  In October 2013, the trial court judge granted her application.  Importantly, the judge deemed Caitlyn “un-emancipated [sic] solely for the purpose of a potential contribution from [her parents] as it relates to college costs.”  He ordered that Maura and Mike pay for Caitlyn’s tuition, fees, and costs for the 2013-2014 school year, after application of Caitlyn’s financial aid award.  This amounted to about $2,000, or what the trial judge viewed as a “de minimis” amount.  The judge did not conduct a plenary hearing prior to making its decision that Caitlyn be deemed “un-emancipated” for this specific purpose.  Nor did he conduct a review of the parents’ finances to determine their abilities to pay for Caitlyn’s college expenses.
  • Caitlyn was accepted to Temple University for the Fall 2014 semester.  She applied for financial aid and received it, but had about $18,000 / year in un-met tuition expenses, which she wanted her parents to pay.  Caitlyn filed a motion seeking to enforce the Court’s prior order, arguing that it required her parents to pay her tuition, fees, and book expenses.  Maura and Michael opposed the application, arguing that the October 2013 Order was limited to tuition, fees, and books for the 2013-2014 year and that the Order did not determine their obligations, if any, for college contribution in subsequent years.  In October 2014, the Court granted Caitlyn’s application and “enforced” the prior Order, ordering Maura to cover 40% of the unmet college costs, and Michael to cover the balance.
  • Michael and Maura filed a motion for reconsideration.  They argued that the order was unfounded because Caitlyn had unilaterally moved out of Maura’s home after refusing to even compromise about the plan they had laid out for her to impose discipline; transferred to an expensive out-of-state school without conferring with them; refused to communicate with her parents; and continued to act independently, without regard to their parental input.  In short, they argued, she was emancipated and their obligation to support her ended with her rejection of their parenting.  The Court denied their motion and Mike and Maura appealed from all three (3) trial court orders.

The Legal Framework

Whew, that was a lot of facts!  Now let’s get to the law.  In her opinion, Judge Lihotz walked us through the legal framework to which the Court should adhere in these cases.  First, the Court needs to answer the threshold question of whether the child at issue is emancipated.  Lots more on that below.

Next, if the child is not emancipated, the court must consider whether the child has the aptitude for college.  The seminal Newburgh case does not require deferred emancipation for children reaching the age of majority in every single instance; if a child is unable to perform adequately for his or her academic program, then it may be appropriate to find that the child is emancipated.

Finally, if a child has the aptitude for college, a review of the parents’ finances and determination of their abilities to pay and to afford college must be undertaken so that the Court can determine what a parent may reasonably contribute to a child’s college education expenses.

Highlighting the Threshold Question of Emancipation

In reviewing the trial court decisions below, Judge Lihotz essentially found that the trial judges had put the proverbial cart before the horse by failing to address the threshold question of whether Caitlyn was emancipated or not.

Simply put, the parent-child relationship imbues parents with certain “rights, privileges, duties, and obligations.”  One such duty  is to provide financial support, a form of which is contribution to a child’s college education expenses.    The Court, in exercising its power to protect children, has authority to impose support obligations, but this power is limited and terminates upon a child’s emancipation.

So when is a child emancipated?  Well, Judge Lihotz wrote, this depends upon the nature of the parent-child relationship as much, if not more so, than the age of the child:

The dependent parent-child relationship indicative of unemancipation is not merely shown by a child’s claimed need for financial support.  Our jurisprudence unmistakably mandates there must be examination of the parent-child relationship itself.  In fact, a better description is the relationship is one of interdependence: the child’s right to support and the parents’ obligation to provide payment are inextricably linked to the child’s acceptance and the parents’ measured exercise of guidance and influence.  Conversely, a finding of emancipation is a recognition of a child’s independence from a parental influence. (internal citations omitted).

In this case, Judge Lihotz observed, the two sides of the story could lead to different results.  Caitlyn’s version of the facts was, essentially, that she couldn’t possibly have accepted her parents’ guidance and influence because they were imposing unreasonable, unbearable restrictions and demands upon her; they had forced her outside of their sphere of influence involuntarily, and why should she be penalized for that?  Maura and Michael’s version of the facts, on the other hand, was that they were parenting Caitlyn; she needed their strict guidance due to her wild and irresponsible behavior, but she had outright rejected it and chosen to live independently of them and their influence.  Given the diametrically opposed accounts of what had happened, Judge Lihotz observed, a plenary hearing and a fact-finding should have taken place in order to make a determination as to whether Caitlyn’s version of events rang true such that she should be deemed unemancipated, or whether it was appropriate for her to remain emancipated because her parents’ version of the story was more accurate.

One thing seems to be certain: it was improper for the judge to deem Caitlyn un-emancipated for the limited purpose of assessing college expenses to her parents.  As Heidi Klum might say, you’re either “in” or you’re “out.”

 

Either you are emancipated and not entitled to support from your parents – including payment for college expenses – or you’re not emancipated, and you are entitled to support.

Let’s Try This Again…

Ultimately, Judge Lihotz ordered a remand (legalese for a “do-over”) to the trial court.  First, the trial judge must hold a plenary hearing to determine whether Caitlyn was emancipated after all.  The judge will have to review the record and make an assessment as to whether Caitlyn voluntarily set out on her own path and rejected her parents’ guidance and influence.  If not, and she was not emancipated, then the Court will have to address the secondary questions of whether Caitlyn had the aptitude for her academic program (which, now that Caitlyn is 23 and may or may not have graduated from college by now, should be self-evident), and will have to review the parties’ finances to determine their fair shares of financial responsibility.  But it all boils down to that first question:  was Caitlyn emancipated when she made her initial application?


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

Signed into law on January 19, 2016, New Jersey’s emancipation law is set to take effect on February 1, 2017 and will apply to all child support orders issued prior to or after its effective date.

37774117 - definition of word emancipation in dictionary

One of the highlights of the new law is that it will dramatically impact when and how child support orders will terminate. Specifically, it provides that unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service.

Child support will also terminate automatically when a child reaches 19 years of age unless (a) another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age; (b) a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or (c) the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.

Just ahead of the effective date of the statute, Judge Jones issued an opinion on the effect of one child’s emancipation in Harrington v. Harrington. In Harrington, the parties divorced in 2012. The parties have three children, all of whom were unemancipated at the time of the divorce. As such, the parties’ settlement agreement provided that the father would pay the mother the sum of $240 per week in child support for all three children. In what would become a decisive fact in the case for Judge Jones, he noted that the child support was unallocated, rather than broken down or allocated into specific dollar amounts for each child – either on a one-third per child basis or otherwise.

Following the divorce, the father paid child support as agreed without requesting an modifications, even when their oldest child began college. In September, 2014 the parties mutually agreed to emancipate their two oldest children. Two orders were entered confirming the emancipation, but the amount of child support that the father paid remained the same. Further, neither party submitted or exchanged updated financial information or filed any motion.
In June, 2015, the last remaining unemancipated child graduated high school and decided not to proceed to college. The father continued to pay $240 per week in child support nonetheless, without any objection by either party.

In February, 2016, a year-and-a-half after the first two children were emancipated, the father filed a motion for the retroactive allocation of child support to $80 per child, and downward modification of one-third per emancipated child, effective September, 2104. He also sought to emancipate the youngest child and terminate his obligation. The mother consented to the emancipation of the youngest child, but opposed the retroactive modification that the father sought.
With regard to the issue of retroactive emancipation, the Court initially grappled with which law to apply in this situation: should it apply the anti-retroactivity statute which prohibits the retroactive modification of unallocated child support, or does the case law with regard to retroactive emancipation apply?

In reaching its decision, the Court devised a set of equitable factors that should be examined:

1) How much time has passed between the date of one child’s emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period, the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the non- custodial parent seeks to receive back from the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors the court deems relevant to the analysis?

In applying the above factors to the present case, the Court considered the following factors: nearly a year and a half passed between the effective date of the emancipation for the older two children and the filing of the father’s motion; there was no reason provided to explain the delay in filing; during that period, the father continued to pay the same level of child support to the mother; there was no evidence submitted that the mother or the children engaged in any type of fraud; the mother and children communicated facts that would have led to a modification of support; and, a retroactive modification of support to 2014 may be unduly complicated given the fact that no financial information was submitted for the period of time in question – 2014-2016.

The Court noted that a hearing should to be scheduled to examine these factors and weigh the comparative equities to determine whether to exercise its discretion and retroactively modify unallocated child support prior to the motion filing date, based upon a prior emancipation of one or more children. However, the Court was somber in its knowledge that this would not be an easy task – i.e. to recreate what child support *might* have looked like over a two year period of time.
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Eliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

On Tuesday, January 19th, Governor Christie took a break from his busy presidential campaign to sign several new pieces of pending legislation, one of which was New Jersey’s pending emancipation statute that impacts upon child support and when/how it terminates.  The new law, which takes effect 180 days after its signing, is applicable to all child support orders issued prior to, or, or after its effective date.  Much of it codifies existing case law, but alters, in part, the prior rebuttable presumption that child support terminates when a child reaches age 18.  The language specifics and nuances will most certainly in a manner similar to the amended alimony law, future litigation over what such language means and how it should be applied.

bill becomes law

With that said, let’s take a look at the important components of the new emancipation law and what it means:

Termination of Child Support

The law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child – who is less than 19 years of age – marries, dies or enters into military service.

Child support shall also terminate when a child reaches 19 years of age unless:

  1.  another age for such termination is specified in a court order;
  2. the parties consent and the court approves the continuation of support until after a predetermined date; or
  3. child support is extended by the court based on an application filed by a parent or the child prior to reaching age 19.

A parent or child may also seek the continuation of child support beyond 19 years of age under the following circumstances:

  1.  the child is still enrolled in high school or other secondary program;
  2. the child is participating full-time in a post-secondary education program;
  3. the child has a physical or mental disability that existed prior to the child reaching the age of 19 and requires continued child support; or
  4. other exceptional circumstances as may be approved by the court.

Interestingly, if a court orders the continuation of child support, it must also provide in the order “a future date upon which the child support obligation will terminate or a date upon which the court will review the circumstances of the parties and children.”

Matters involving child support obligations supervised by the Probation Division will require Probation (and the State IV-D agency) to provide both parents with at least one notice of proposed termination and instructions on how to seek a continuation of child support.  Such notice is to be provided no less than 90 days prior to the termination of support under the new law.

Unallocated Child Support for Two or More Children

The new law codifies that if there exists an unallocated (not specifying the amount for each child) child support order for two or more children and the obligation to pay for one child terminates, the existing support obligation shall continue until modified by court order.  Of course, this is no way prevents the parties from coming to a resolution of the issue to avoid the time and expense associated with litigation.

If the support for such children was allocated – rather than unallocated – and support for one terminates, the amount of child support for the remaining children shall be adjusted to reflect only the amount allotted for the remaining child/children.

Arrears Existing at Termination

If support arrears exist when support terminates under the new statute, such arrears will remain due and enforceable.  The new law provides how payment for such arrears will be made, as the “sum of the recurring child support obligation in effect immediately prior to the effective date of termination plus any arrears repayment obligation in effect immediately prior to the effective date of termination” unless otherwise ordered.

Impact on Foreign Support Orders

The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act (“UIFSA”), or a law substantially similar to New Jersey’s prior Uniform Reciprocal Enforcement of Support Act (“URESA”).

Impact on Support While Child in College/Post-Secondary Educational Institution

The law unambiguously provides that it does not require or relieve a parent from paying “support or other costs while a child is enrolled full-time in a post-secondary education program.”

Important Miscellaneous Points

Any party may also still seek to terminate child support for any reason other than that provided in the new law.  Also, the law confirms that it does not “prohibit the parties from consenting to a specific termination date subject to the approval of the court.”  Prior language that did not make its way into the final law focused on utilizing “capped” age of 23 to terminate support, which is often found in settlement agreements as a sort of “catch all” provision as to when child support will end.  I have had adversaries argue to me – when, of course, it suits their client’s position – that using the age of 23 as a cap to end child support is unenforceable as against public policy.  The new law confirms, however, that such a cap could be enforceable, and that it – like any other agreed upon language regarding a support termination date – is subject to the court’s approval.   Hopefully that will limit litigation that can occur surrounding such provisions in a settlement agreement.  To that end, practitioners should also consider incorporating references to the new law in the emancipation portions of their settlement agreements.

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 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

In the return of our New Jersey Family Law Podcast Series, we are proud to present our fifth installment discussing child support and emancipation.  This has been a hot topic in recent months, especially following the Rachel Canning lawsuit from earlier this year.  Enjoy!

Listen to the Podcast and download the transcript here.

microphone

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Robert A. Epstein is a partner and Eliana T. Baer is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com. Eliana practices in the firm’s Princeton, New Jersey office and can be reached at (609) 895-3344, or etbaer@foxrothschild.com.

 

Emancipation of a college student – when does it happen?  When should it happen?  In the wake of the Rachel Canning matter, emancipation is a hot button topic in New Jersey.  Generally, the law provides that a child is emancipated when he or she is no longer within the parental “sphere of influence and responsibility.”  It is been deemed the “conclusion of the fundamental dependent relationship between parent and child.”  Well, what does that even mean?  In Rybak-Petrolle v. Rybak, a newly unpublished Appellate Division matter, the Court reversed a trial court decision emancipating the parties’ then 21-year old son.

college (courtesy of google free images)

Here are the facts that you need to know:

The parties’ entered into a settlement agreement that provided for mom to be the primary residential custodial parent for the children, and for dad to pay child support until emancipation, which was defined in the agreement as follows:

An Emancipation Event shall occur or be deemed to have occurred upon the earliest happening of any of the following:

a. The completion of five academic years of college education;

b. Marriage . . . ;

c. Permanent residence away from the residence of [plaintiff] . . . ;

d. Death;

e. Entry into the armed forces . . . ;

f. Engaging in full-time employment, during school vacations and summer periods shall not be deemed an Emancipation Event.

g. Notwithstanding anything contained in sub-paragraph (a) above, an Emancipation Event shall be deemed deferred beyond a child’s [twenty third] birthday only if and so long as he pursues college education with reasonable diligence and on a normally continuous basis.

More than 10 years after the settlement, the Passaic County Probation Division inquired as to whether the child at issue was emancipated for purposes of child support enforcement.  In response, mom submitted documents showing that child was a full-time student at Berkeley College.  Probation, however, was not satisfied with such proofs, and requested a court Order relieving it of its duties to monitor and collect child support.  At a subsequent hearing, the trial judge, after finding that child was a full-time college student, denied Probation’s emancipation request.

After further procedural activity involving Probation’s enforcement duties, another hearing occurred several months later where Probation again argued – despite the trial court’s prior Order – that it was not satisfied with mom’s proof that the son was a full-time college student.  Mom responded that child was in his sophomore year of college, and that he was originally enrolled in Seton Hall University, but did not do well.  She added that he took one semester off before transferring full-time to Berkeley College for online classes where he was maintaining a 4.0 grade point average.

When asked why child was taking online classes, mom responded that it worked better for his schedule, because he was also working 2 jobs to pay for his car insurance bill.  When asked if child was working full-time, mom responded that he was, at which point the judge declared the child emancipated, concluding that “the son was not pursuing a college education with reasonable dilligence on a normally continuous basis as required by the PSA.”

On appeal, the Appellate Division determined that a plenary hearing should have occurred to determine if the child was emancipated, since it is a fact-sensitive inquiry – specifically, “a critical evaluation of the prevailing circumstances including the child’s need, interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.”   The trial court based its ruling solely on “limited questioning” as to the son’s full-time employment while taking online classes and, as a result, a conclusion that he was not pursuing full-time education with reasonable diligence.  The trial judge made no findings as to:

  • The child’s needs and abilities;
  • How many course credits he was taking;
  • His total expenses for school;
  • How many hours he was working;
  • How much he earns;
  • Whether those earnings are sufficient to cover the costs of school and living expenses;
  • Whether there were scholarships or financial aid packages applied for and received; and
  • Other relevant factors.

The parties’ agreement also provided, as quoted above, that one defined emancipation event was the completion of 5 years of college, and that, if the child reached his 23rd birthday, emancipation would be deferred “only if and so long as he pursued college education with reasonable diligence and on a normally continuous basis.”  Based on such enforceable language, the Appellate Division noted that the trial court failed to explain why he used the agreement’s standard for continuing college after 23 when the child was only 21 at the time of the hearing, and held that a child working “while attending school cannot be the sole determinative factor in the decision to emancipate,” nor can be the fact that he took a semester off before transferring to his present school.

The lesson to be learned here is that whether a child – especially one who is simultaneously in college and working – is emancipated is a very fact specific inquiry requiring detailed analysis and consideration.  The answer is not simply in a settlement agreement, nor can it typically be isolated to one specific detail.

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Robert A. EpsteinRobert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

 

 

You may have heard about the hot news story that continues to gain traction nationwide where a New Jersey teen sued her parents in the Morris County Superior Court for financial support, private high school tuition, college payments, and attorney fees.  It even made the cover of today’s Star Ledger.  She is seeking an official declaration that she is unemancipated and, as a result, her parents are still obligated to support her.  The case has largely generated a public outcry, as people question how, based on the facts and circumstances at issue, a court could consider impeding on parents’ rights.

Rachel Canning, eighteen years old and a student at Morris Catholic High School (who has reportedly been admitted to seven different colleges), claims that her parents forced her to leave their home and that, as a result, she is unable to financially support herself.  Her allegations are certainly troubling, whether true or not, that her parents verbally abused her, and also threatened to physically do so.  Her certification to the court, signed under oath, claimed that she “had to leave to end the abuse,” that her parents stopped paying private high school tuition to punish her, and that they have redirected her college fund.

arguing

By contrast, her parents deny the abuse, and claim that Rachel left voluntarily because she did not want to obey their rules, such as being respectful, complying with curfew, and performing some chores around the home.  In fact, they are welcoming her back into their home.  They further claim that Rachel was suspended from school in October, 2013, shortly before moving out of the home, and, as a result, her parents indicated that she could no longer see her boyfriend (who was also suspended from school), and had lost her car and phone privileges.

When the punishment came down, her father claims that Rachel cut school again and ran away from home.  Rachel moved in with relatives of a close friend, and the lawsuit is being funded by a former Morris County Freeholder.  Interestingly, while Rachel’s parents have paid for Morris Catholic through the end of last calendar year, the school has indicated that it would not kick her out for unpaid 2014 tuition.

Notably, an investigation undertaken by the Division of Child Placement and Permanency (DCPP), which Rachel claims was initiated by the school, determined that her allegations of emotional abuse were unfounded.

Yesterday, March 4th, the Morris County trial judge, the Honorable Peter Bogaard, J.S.C., denied Rachel’s request for immediate weekly child support, thousands of dollars in attorney fees, and immediate reimbursement of her high school tuition.  The judge denied the high school reimbursement request because the school indicated that she could remain for her last semester without payment, and denied the request for immediate financial assistance because there was no emergency posed.  The judge did rule that her parents must continue to cover the child on their health insurance policy and maintain the status quo on all existing college savings accounts.

Another hearing is scheduled for April to determine other issues in the suit, including whether Rachel voluntarily left her parents’ home, and whether her parents are required to pay for college.  In so ruling, he admonished the child for her disrespectful behavior towards her parents, fault for which Rachel’s attorney attributed to her parents.

The case is newsworthy in asking a trial judge to determine whether parents have a support obligation for this child.  It presents one of those very “slippery slope” type situations where, if Rachel’s relief is granted, it could potentially open the door for kids everywhere to sue their parents for financial support.  Indeed, Judge Bogaard remarked during yesterday’s oral argument that this could open the door for a twelve year old to sue his parents for an X-Box, or another young child suing her parents for an iPhone, because everyone has an iPhone.

While Rachel’s allegations are concerning, that does not mean she is entitled to that which she seeks from the court.  Emancipation requires that a child be beyond the “sphere of parental influence,” but parents also have a fundamental right to parent their children without unnecessary interference.  Indeed, Rachel’s parents argue that the person funding her litigation is interfering with that very fundamental premise.  We have dealt with that very situation in the past, where a relative or family friend will fund a child’s litigation against parents for various forms of relief.

Further, while divorced parents in New Jersey are required to fund an unemancipated child’s college education, intact parents are not similarly required to do so.  Perhaps that is somehow unfair or incongruous, or some sort of equal protection issue, but it is the law.  A decision by the trial judge requiring the parents to pay for college, or somehow maintain the already existing college funds for Rachel, will certainly garner attention statewide, if not nationwide, and will undoubtedly lead to ongoing litigation between a child and her parents embroiled in a battle that has long since veered out of control.  The litigation is tragic, and hopefully this matter will soon come to an end so that this family can work on getting itself back together and moving on.

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Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

 

It seems with greater frequency, a divorced parent will argue that he should not have to pay for a child’s college (a New Jersey requirement) because he has a poor relationship with the child and, relatedly, had no say in the education decision making process (i.e., what college, at what cost, etc.).  Since a parent’s relationship with a child is only one factor to be considered in determining that parent’s obligation to pay for a child’s post-secondary education, this argument is usually unsuccessful in isolation due to the importance of a child obtaining a post-secondary degree.

In an interesting approach to get around the limited success rate surrounding this argument, the dad in Radcliffe v. Radcliffe, Jr., a newly unpublished (not precedential) decision from the Appellate Division, argued primarily that the parties’ settlement agreement required the child’s emancipation, which would extinguish his obligation to support the child and pay for his share of college.  When reviewing the facts of the case as presented in the decision, the father’s approach seemed dubious, and, as a result, the Appellate Division not only took him to task in reversing the trial court – which actually largely relied on the parent-child relationship in rendering its decision – but also commended the daughter’s conduct.

As a refresher, a court will deem a child emancipated if, based on existing facts and circumstances, the child has moved “beyond the sphere of parental influence and responsibility exercised by a parent and obtains an independent status of his or her own.”  A court will look at, among other things, the child’s needs, interests, independent resources, the family’s reasonable expectations, and the parties’ financial ability.

In Radcliffe, the parties agreement, as often occurs, specifically defined emancipation as follows:

a. The completion of the child’s formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school. It is understood that as long as the child is diligently pursuing his or her formal education through a four year high school or a four year undergraduate college education, is obtaining passing grades, and is deemed by the college or school to be a full time student, the child shall not be considered emancipated.

b. Upon the completion of any of the prior segments of the child’s education and upon failure to commence the next segment of his or her education, or upon leaving school, the child shall be deemed emancipated. A child shall not be emancipated if one fails to continue his or her education because of some injury, illness or other cause beyond the child’s control.

c. The marriage of the child.

d. Entry into the military or armed forces of the child.

The parties also agreed to share the financial cost of college.

The facts here then take an interesting turn:

  • Daughter graduates from high school in June, 2012.
  • Prior to graduation, she was accepted at a private, out-of-state, 4-year college, which, after financial aid, would still cost $30,000 per year.
  • Recognizing her parents’ inability to afford this amount, daughter – one week after her high school graduation – enrolled in a 26 week “massage and bodywork program” at an accredited vocational institute.  With her massage therapist certification, daughter hoped to work during college and contribute to her education costs.  Tuition for the vocational program was $11,000.  Daughter took out a loan for $3,900 and asked her parents to fund the remaining portion.
  • After obtaining her massage therapist certification, daughter intended on enrolling at a county community college for the Spring 2013 semester.  She ultimately planned to attend community college for 2 years and then transfer to a New Jersey state, 4 year college or university so as to complete the last 2 years of her undergraduate education.  Community college cost $2,250 per semester, but, after the financial aid she received, would only cost $700 per semester.  While attending community college, daughter would continue to reside with mom and commute to school.
  • Daughter sent dad a copy of the tuition bill for the massage therapy program asking him to pay his portion.
  • Dad responded by filing a motion to emancipate his daughter, arguing that he had not had any contact with the daughter for the past 18 months, had not been consulted on her education plans, and, because daughter was not enrolled in a 4-year college, she should be deemed emancipated per the settlement agreement.
  • The trial court emancipated the daughter, thereby ending dad’s support and college obligation.  Mom appealed.

In reversing the trial court’s decision, the Appellate Division repeatedly commended the daughter for what it described as her “innovative” plan, where there was “absolutely no break in her quest for a college degree.”  Specifically, the Court concluded that the daughter had not moved beyond that “sphere of influence,” as she was still living with mom, was still financially dependent on her parents, had only missed one semester of college so as to pursue her “quest,” and was doing everything she could to obtain that undergraduate degree, including pursuing full-time educational pursuits.

As to its interpretation of the contractual language in the parties’ settlement agreement, the Appellate Division concluded that the parties’ intended for the daughter to go to college, and even agreed to jointly fund the entire net cost of college expenses.  Lauding the daughter for her in-state college plan, rather than compelling her parents to fund an out-of-state private school education, the Court concluded that she would obtain that 4-year degree so long as everything went as planned.

The Court then moved onto the trial court’s decision, which relied primarily on dad’s argument that he should not have to pay due to the poor relationship he had with the daughter.  Ultimately, the Appellate Division found that the trial court’s reliance on this one single factor of the analysis I describe above was improper:

The child has a commitment to her education, a commitment to working during college to help pay her way, and a commitment to earning as much financial aid as possible to reduce her parents’ burden.  After considering all of these factors, we conclude they weigh substantially in favor of requiring defendant to pay his share of the daughter’s vocational school and college expenses.

Based on the specific facts at issue, the Appellate Division’s decision seems appropriate in rightfully rejecting dad’s efforts to avoid payment for the college expenses that he is obligated to pay in the State of New Jersey, and agreed to pay in the parties’ settlement agreement.

__________________________

Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

The number of college graduates living with their parents has almost doubled since 2007. Currently, over 45% of 26-year-olds live at home with their parents. The figures highlight the difficulty that many young Americans have had in establishing careers following the longest recession this country has faced since the Great Depression. Some children, although employed, simply lack the funds to move out and may remain with their parents, even well into their twenties.

As a Matrimonial Attorney, these staggering statistics present an interesting question as to a non-custodian’s obligation to continue contributing to the support of a child, though a college graduate and/or employed, is still ostensibly supported by his or her parents; at least with regard to shelter expenses.

In New Jersey, a parent is under no duty to contribute to the support of an emancipated child. In deciding whether to emancipate a child, a Court will generally examine whether the child has “moved beyond the sphere of parental influence.” When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated. As mentioned above, a curious situation presents itself where the child should be self-supporting, but the economy prevents him or her from obtaining lucrative employment.

A similar, yet instructive, situation was the topic of a recent (unreported) decision by the Appellate Division in Gall v. Gall. In Gall, the parties’ son, Brian, lived at home and intended to enroll as a full time student in the future. He worked full time, paid for his personal expenses including gasoline, clothes and food outside the home. However, his earnings were insufficient to allow him to move out of his mother’s home.

The trial court declined to emancipate Brian and awarded child support pursuant to the Child Support Guidelines. In addition, the non-custodial father was required to contribute toward Brian’s college expenses. The non-custodial father appealed.

While the Appellate Division “agree[d] in theory that a full-time college student is not emancipated as there is no ‘fixed age’ for emancipation…” it further found that because Brian was employed full-time and was only a part-time student, he should have been deemed emancipated. As a result, the Court reversed the order of child support as to Brian. In doing so, the Appellate Division set forth a bright line (although non-precedential) rule of thumb: “…a child over the age of eighteen, working full-time, and attending school only part-time, absent some unusual circumstances…is emancipated even if residing with a parent because his or her employment income is alleged to be insufficient to allow the child to live independently.”

 

When there is a hostile relationship or a non-existent relationship between a child and a non-custodial parent, there is a possibility that the non-custodial parent may be relieved of the obligation to contribute towards college expenses.  In my prior blog, I discussed the impact of college financial support when the child won’t speak with the non-custodial parent.

After the blog was posted, many asked me whether or not a deteriorated relationship between a child and a non-custodial parent could result in the termination of the non-custodial parent’s child support obligation. The answer is almost always NO the child support obligation will not be terminated even if the child refuses to have a relationship with the non-custodial parent.  (Note, however, where a custodial parent encourages such a circumstance or is the cause of the circumstance, continued custody of the custodial parent may be significantly impacted.)

Strictly for child support purposes, if the child has not moved “beyond the sphere of influence and responsibility” of the custodial parent and has not obtained “an independent status of his or her own”, the child would not be emancipated and the non-custodial parent would continue to have a duty of child support.  Under this inquiry, unless the child is a celebrity and making their own appreciable amount of income, clearly any child under the age of eighteen and/or still a high school student will have not achieved an independent status.  Therefore, if the child and non-custodial parent never see each other, never speak or the relationship is hostile, the non-custodial parent still has a duty to support that child.

Continue Reading Child Support Obligation When the Child Won’t Speak to the Parent

An often addressed issue between divorcing parents is who is going to pay for the children’s college education and related expenses, and in what proportion.  When the issue is litigated, a court will generally look to the twelve factors enunciated in the Supreme Court’s 1982 Opinion of Newburgh v. Arrigo.  Resolutions between parties may include a number of possibilities, including dividing the costs in proportion to the parents’ respective incomes, abiding the event, etc.  Settlement agreements also typically contain language requiring the child to apply for scholarships, grants, loans and other forms of financial aid to stem the blow.  College funds or other types of savings accounts might have been established for the children that are to be applied before any additional financial obligation befalls on the parents. Each of these different mechanisms is designed to protect the children, ensure proper education, while also considering the parent’s financial circumstances as well, which are often altered following a divorce due to additional expenses, new families, legal fee debt and the like.

The next question, forming the basis of this blog post, is what obligation do parents have to contribute to graduate school?  Does a parent have an obligation to pay for a child’s law school tuition?  How about medical school?  This infrequently addressed issue in the court system was recently taken on by the Appellate Division in Schambach v. Schambach, a very interesting decision containing an analysis in a concurrence/dissent that merits in-depth discussion.

Continue Reading Graduate School – Who Pays?