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

___________________________________________________________________________________________

b3fe052a-e03f-4885-a30f-2daae5b6e8e5

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  In Rybak-Petrolle v. Rybak, a newly unpublished Appellate Division matter, the Court reversed a trial court decision emancipating the parties’ then 21-year old son.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.

 

 

 

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.

______

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.

We have written many times on this blog about the dangers of using social media in connection with an ongoing divorce, custody dispute, domestic violence matter, and more.  Apparently Rachel Canning, the New Jersey teen suing her parents for financial support and college payments, is not a subscriber to the blog.  If she were, she would know that creating a Facebook page to support her suit against her parents is only going to lead to trouble.

facebook

A quick review of the Facebook page reveals the following recent posts, which are believed to have been written by Canning herself:

In New Jersey (as in most states) parents are required to support their kids through high school unless legally emancipated, which I’m not. This means that they can NOT put conditions on me being at home, which they did. They can’t get out of this. The fact that they cut my tuition was also clear bad faith, and a breach of contract with the school. What did they expect me to do, drop out? I am absolutely amazed at some of the cruel (and legally ignorant) comments I’m reading here.

Suburban baby boomer types are the spoiled lot, they make massive amount of money a year, they are used to flying to luxury destinations when they want, and buy things that they don’t need, people should be inclined to see things Rachel’s way.We have been stunned by the financial greed of modern parents who are more concerned with retiring into some fantasy world rather than provide for their c…hildren’s college and young adult years.

In today’s economy there are no more meaningful jobs and without family help it’s usually military or bust. We see parents like this every day, children were always an accessory to them and nothing more, once that accessory grew up and went out of fashion, much like a marriage that people allegedly commit to, the child becomes a throwaway, that’s just how it is.

Not only have these, and other posts from Canning resulted in harsh responses from many page followers, but the posts themselves constitute potential evidence for her parents to utilize, and the trial judge to rely upon, when further rendering decisions in this matter.  The judge has already made some very strong statements against Rachel’s position, including commentary addressing the gross disrespect that he believes she has shown towards her parents.  The posts may, as a result, further tarnish her image and credibility, which may also be a factor in the Court’s decision making process.
Clearly Rachel has either taken it upon herself, or been advised by others, to use the Facebook page in an effort to sway public opinion in her favor.  Perhaps she is the litigant that I previously blogged about who is simply unable to stop herself, like many other people in today’s society, from using social media to post about anything and everything.  Considering the surprisingly massive attention this Morris County case is getting, she should think twice.  The potential negatives far outweigh any nominal benefits to be gained.