In 2014 my colleague wrote an excellent blog entitled “When Does Child Support End?-Shifting the Burden”, which discussed New Jersey law on the emancipation of a child and the termination of child support. Another colleague has further blogged about the payment of college expenses by divorced parents. You may also recall a 2014 case filed in New Jersey by Rachel Canning, who moved out of her parents’ home because she did not want to abide by their rules, yet filed an application to compel her non-divorced parents to pay for her college expenses and support. That application was ultimately never decided as Rachel decided to return to her parents’ home. However, a recent Appellate Division decision may shed some light on on the law that appears to be evolving in New Jersey regarding the support of children who have reached the age of 18 when that adult child chooses to live beyond the “sphere of influence” of his/her parents, yet still wishes for the parents’ financial support.
On April 13, 2015 the Appellate Division decided the case of Llewelyn v. Shewchuk, in which the Appellate Division reviewed a family court’s decision to emancipate the parties’ 21 year old adult child, when that child opposed her own emancipation. In this case, the adult child was born in 1992 to her mother, the Plaintiff in this case, and her biological father. Her mother, however, married the Defendant in 1994 and the Defendant adopted the child. In 2002 the Plaintiff and Defendant divorced, with the Plaintiff having primary residential custody of the children, and the Defendant obligated to pay child support and contribute to the children’s college educations. In 2013, the Defendant filed an application in the family court, seeking to have the now 21 year old child deemed emancipated and his child support application terminated. The Defendant argued that he learned that the child was no longer living with her mother, the Plaintiff, that she had graduated from high school, and was working rather than attending school. The Plaintiff informed the Court that her daughter moved out of her home in January, 2013 and into the home of her daughter’s biological father, which she believed was temporary. However, the Plaintiff ultimately agreed that her daughter’s move from her home was not temporary and she consented to her daughter’s emancipation and the termination of the Defendant’s child support obligation.
The parties’ daughter filed two certifications in the family court opposing her own emancipation. She certified that she did move out of her mother’s home and that she was living with her biological father and his wife, though she did not indicate why she had moved from her mother’s home. She opposed her own emancipation, asserting that she had not moved beyond her parents’ “sphere of influence or responsibility”, that she was not yet independent and that she still required financial support. The adult child certified that she was working only part-time at a donut shop, and she claimed that she was attending community college to pursue an Associate’s Degree and that she intended to pursue a career in the medical field. She provided unofficial transcripts from community college with regard to the classes she had taken and for which she was enrolled, and a community college bill, which she indicated was paid by her biological father and his wife. She also provided a letter from a psychologist and medical doctor that indicated that the adult child had been treated for an anxiety disorder and depression related to her family situation. The family court judge determined that the child was emancipated and terminated the Defendant’s child support obligation, with the consent of the Plaintiff, the child’s mother.
The adult child appealed the trial court’s decision to emancipate her. The Appellate Division affirmed the family court’s decision to emancipate the child and terminate the parties’ obligation to support the child. The Appellate Division acknowledged that in New Jersey parents are expected to support their children until they are emancipated even if the child lives with one, both or neither parent, citing Colca v. Anson, 413 N.J. Super. 504, 414 (App. Div. 2010). The Court further acknowledged that the right to receive child support belongs to the child, not to the custodial parent and, therefore, a child’s right to child support is enforceable at the insistence of the child him/herself. The Appellate Division also recognized that enforcement of a child support obligation is not defeated merely by the fact that the child is no longer a minor and has reached the age of 18. The Supreme Court in Newburgh v. Arrigo, 88 N.J. 529, 543 (1982) and Gac v. Gac, 186 N.J. 535, 542 (2006) addressed how “in appropriate circumstances, the privilege of parenthood carries with it the duty to assure . . . a necessary education for children.”
The Appellate Division, however, acknowledged that support for a child who has reached the age of majority (18 in New Jersey) is fact sensitive, noting that when a child reaches the age of 18, there is not a conclusion, but a presumption of a child’s emancipation. The burden shifts to the party or the child seeking to continue child support to rebut the presumption of emancipation at age 18. That presumption can be overcome by evidence that the adult child has needs such that the child is still dependent on the parents.
In this case, the Appellate Division agreed with the family court’s decision to emancipate this adult child. The Court noted that there are cases involving minors or adult children with special needs who have lived apart from their parents without being deemed emancipated. The Court examined the case of L.D. v. K.D., 315 N.J. Super. 71 (Ch. Div. 1998), wherein a 19 year old who was living in an apartment with a roommate with the help and consent of the 19 year old’s mother. The child in that case was 19 and not living with either parent, but was still in high school, was financially dependent on her mother, and had special needs. She was living in an apartment with a roommate so that she could complete high school in that same school district, and her mother used child support paid by the child’s father to pay her apartment expenses. The Appellate Division distinguished that case from this one, noting that there is no evidence that the adult child’s anxiety or depression interfered with her ability to be independent. There was no evidence that the plaintiff and defendant continued to support her after she moved out of her mother’s home. The child was a 20 year old adult who sporadically attended college and who voluntarily moved out of her mother’s home and into the home of a third party (her biological father) and to be supported by a third party who had no duty to support her. The Appellate Division agreed with the family court that the adult child withdrew from her parent’s supervision and control and affirmed the decision to emancipate her.