New Jersey Divorce and Family Lawyer Blog
New Jersey has since the Divorce Reform Act of 1971 stood in the forefront in developing the law as it relates to Marriage and Divorce. We have over the years defined the law, and the Nation has followed and adopted some of our theories as to the distribution of property and the valuation of assets. It has been my pleasure to have been a divorce lawyer during this period of development, and to be recognized as a primary commentator on Family Law though my New Jersey Institute for Legal Education multi-volume treatise The Yudes Family Law Citator. Over the past 27 years this seminal work has captured and analyzed every published decision on family law in New Jersey. Our firm has done more, however, then simply comment on the law. We have been in the forefront of the law’s development. Our participation in Supreme Court and other Appellate Division decisions, as well as federal court, have molded enduring principles of Family Law adopted not only in New Jersey but through out the nation.
I make this introduction not to brag about my firm or my personal accomplishments but rather to establish my pedigree as I address the next big issue facing not only Family Law but our nation. The issue deals with our most precious resource, our children, and the problem is drug abuse. Wisely, New Jersey, does not follow the “American Rule” which states that children are emancipated at the age of eighteen. Rather, New Jersey follows the more child-centric rule that, although children are presumptively emancipated at eighteen, such a presumption can be rebutted if the child remains in the parents’ influence due to education or other situations that create dependence beyond an arbitrary age.
The concept of the statute and the case law is to mirror what parents would do in intact families in situations where there is a break down in the family by separation or divorce. This nuance in our law follows from the recognized role of our Judiciary in protecting the needs of children. Although there has been much written about the needs of children related to higher education and the rights of children in that regard, a less analyzed and more critical area of for consideration relates to children continuing need for support as it relates to medical and psychological disabilities.
N.J.S.A. 2A:34-23 provides, in pertinent part:
The obligation to pay child support for a child who has not been emancipated by the court shall not terminate solely on the basis of the child’s age if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent.
The statute goes on to state, “As used in this section ‘severe mental or physical incapacity,’ shall not include a child’s abuse of or addiction to alcohol or controlled substances.” This Per Se rule does not indicate that children who are suffering from addiction issues cannot be found to be within the plum of parental influence and hence un-emancipated based on a case-by-case study. However, it does deny the child of the safe harbor from emancipation that is afforded other children who suffer from mental disabilities.
Our children are dying because of drug and alcohol related issues. We as parents, brothers, sisters, relatives and friends are exposed to the heart breaking reality that these lost souls are in the grip of a destructive force not of their own making. According to DSM-5 , Diagnostic And Statistical Manual of Mental Disorders, published by the American Psychiatric Association, Substance Abuse and Addiction are mental disorders. In fact, the statute recognizes that these disorders are a mental health issue by excluding them from the Per Se rule of emancipation. The question becomes: Should this exclusion be in the law and is it Constitutional? My answer to both these questions is no!
We often hear the trite expression that children are not junk. We hear this and our reaction is of course children are not such; children are precious and raising them is both a joy and an obligation. Children are not junk when they drive a car down the road and because of youthful indiscretions drive it off the road and become paralyzed, nor are they junk when they accept a foolish dare and jump into four feet of water and break their necks causing irreparable loss of motor function. How then do they become junk when they suffer from addiction? In a rational world there can be no difference! Under the Equal Protection Clauses of our Federal and State Constitutions, the State cannot make arbitrary distinctions about the rights of different classes of people, in this case children with mental disabilities. The State in making distinctions in a class of people must justify that distinction based on a rational state interest. Kids do stupid things that harm them. They drive too fast, they dive into shallow water, they take dares and make mistakes, some of which cause them serious harm. It seems clear that a child’s fundamental right to be supported by his/her parent should not be determined by the nature of the mistake they make.
The Per Se rule of our statute created Due Process issues as well. Substantively this statute seeks to make a statement that substance abuse is wrong. No one can debate that but to create a class of disabled youth with lesser rights due to the nature of their disability is simply wrong. To make them prove their disability and right to support is procedurally wrong headed.