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By: Charles F. Vuotto, Jr., Esq., Editor-in-Chief
The interplay of “emancipation” and “college” were recently explored in the unpublished Appellate Division case of Alexander v. Alexander.[1] The case raises an interesting question: How do we define full-time college enrollment to stave off a determination of emancipation?
Emancipation is “the conclusion of the fundamental dependent relationship between parent and child[.]”[2] “[E]mancipation is reached ‘when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support.’”[3] “[T]he essential inquiry is whether the child has moved ‘beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'”[4] This determination involves a critical evaluation of the prevailing circumstances, including the child’s needs, interests, and independent resources; the family’s reasonable expectations; and the parties’ financial ability.[5] But doesn’t this eloquent reasoning, which appears in most cases concerning emancipation, beg the question: Is the standard for emancipation objective or subjective in nature?
As the Supreme Court has confirmed, “[a]lthough there is no fixed age when emancipation occurs, N.J.S.A. 9:17B-3 provides that when a person reaches eighteen years of age, he or she shall be deemed to be an adult.”[6] Thus, proof of majority satisfies a noncustodial parent’s prima facie showing, shifting the burden to rebut the statutory presumption of emancipation to the custodial parent.[7] To prevail on a request for dependent support, the custodial parent must prove, for example, that the child remains a full-time student.[8] The Alexander appellate court further explained that:
“One of the fundamental concepts in American society is that
parents are expected to support their children until they are
emancipated, regardless of whether the children live with one,
both, or neither parent.” Burns v. Edwards, 367 N.J. Super. 29,
39 (App. Div. 2004)…. The obligation to provide child support
“is engrained into our common law, statutory, and rule-based
jurisprudence.” [Id.] at 39.
[Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010)
(internal citations omitted).][9]
A well-established instance defeating a request for emancipation and requiring continued support occurs when a child is enrolled in a full-time educational program.[10]
The first question is: What constitutes fulltime college enrollment? While parties often include language in their matrimonial settlement agreements addressing what constitutes full-time college enrollment in connection with emancipation, how does the court determine it when the parties’ agreement is silent on this issue? The standard definition would appear to be 12 credits. This is supported by the following quote from the Alexander case, as well as various universities throughout New Jersey:[11]
Plaintiff argues his son had not achieved full-time student status
until the fall 2009 semester. While we agree that during the prior
four semesters, the child had not completed at least twelve credit
hours, he did complete two summer classes in 2009, achieving
twenty-five credit hours in the 2008-2009 academic year. This
was followed by the fulfillment of fifteen credit hours in the fall
2009 semester and thirteen in the spring 2010 semester.[12]
(Emphasis added)
* * *
Proof of full-time student status requires registration for a full-time
class load coupled with efforts designed to satisfy the degree or
certification requirements of the educational institution. Implicit in
this standard is that a child must act in good faith: the student must
attend class and comply with other course requirements in an effort to
satisfactorily pass. See Filippone, supra, 304 N.J. Super. at 311-12
(holding a child pursuing post-secondary education may no longer be
dependent when the “child [is] unable to perform adequately in his
academic program”).[13]
However, the court cautions that: “Our determination must not be misconstrued as a pronouncement that college students must pass every class taken. On the contrary, each student experiences his or her own unique adjustment to post-secondary schooling, which must always be considered in any review of the totality of the circumstances.”
In rejecting the plaintiff’s argument that the child had not accomplished the requirements of a full-time student, the trial judge examined the totality of the circumstances presented.[14] Specifically, the judge identified the child’s slow start during the 2007-2008 academic year, resulting in part-time student status based on the completion of courses. However, for the 2008-2009 and 2009-2010 academic years, the parties’ son passed courses garnering 25 and 28 credit hours respectively. The court concluded sufficient facts unmistakably revealed the child presented a “commitment to and aptitude… for the requested education[,]”[15] making emancipation improper.[16] Therefore, while it seems that a full-time student is generally defined by the enrollment in 12 credits per semester, there is no bright-line rule for the actual determination of emancipation.
Emancipation is a fact-sensitive issue, and each case must be examined independently and not in a cookie-cutter fashion.[17] However, one can draw a guiding principle from this unpublished decision when it comes to the issue of emancipation and college attendance: The parties, counsel and the court must consider whether the child presents “a commitment to and aptitude for” the requested education from the totality of the circumstances. As such, a mere assessment of credit hours earned in any one semester is not the sole factor.[18]
These concepts assume a free flow of information concerning the child’s college status. In 2009, the United States Department of Education adopted new regulations for the implementation of the Family Educational Rights and Privacy Act (FERPA) restrictions.[19] To the benefit ofNewburgh litigants, educational institutions may disclose information without a student’s consent “to parents of a dependent student as defined in section 152 of the Internal Revenue Code of 1954.”[20] For institutions within the reach of a subpoena power (or in cases where the parties have sufficient resources to conduct discovery outside of New Jersey), the school can make the same disclosures “to comply with a judicial order or lawfully issued subpoena.”[21]
In the recent trial court decision of Van Brunt v. Van Brunt, [22] the court held that as a condition of continued child support, a requirement of proof of college attendance, grades, etc. does not violate an unemancipated child’s right to privacy under FERPA). Both the child and the custodial parent each have a responsibility and obligation to make certain that the noncustodial parent is provided with ongoing proof of the student’s college enrollment, course credits and grades.[23] “If the [custodial parent] has no control [over the child] and cannot obtain simple verifying information from [them] regarding collegiate attendance and performance, then clearly [the child] is outside the scope of [the custodial parent’s] control and influence.”[24]
In sum, it seems that interplay between emancipation and attendance at college, is, as many other things in the practice of matrimonial law, fact-sensitive and subject to judicial discretion. Therefore, although it is essential to fully consider these issues when drafting provisions regarding emancipation incident to marital settlement agreements, family law attorneys must also be mindful that listing one or a limited number of bright-line criteria as emancipating events may not be sufficient to fully and accurately determine whether a child should be viewed as moving beyond the parental sphere.
**Special thanks to Lauren E. Koster, Esq., associate with Tonneman, Vuotto & Enis, LLC, for her assistance with this column.
[1] Alexander v. Alexander, 2011 N.J. Super. Unpub. LEXIS 1562.
[2] Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006).
[3] Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997); See also L.D. v. K.D., 315 N.J. Super. 71, 75 (Ch. Div. 1998).
[4] Id. (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).
[5] Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).
[6] Gac v. Gac, 186 N.J. 535, 542 (2006).
[7] See Filippone, supra, 304 N.J. Super. at 308 (stating the statutory presumption is rebuttable).
[8] Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972).
[9] Alexander, supra, at 8.
[10] See Gac, supra, 186 N.J. at 542 (“The Legislature and our courts have long recognized a child’s need for higher education and that this need is a proper consideration in determining a parent’s child support obligation.”); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (stating “while parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support”).
[11] The following are examples of New Jersey colleges that define full-time enrollment as 12 or more credits per semester: Fairleigh Dickinson University, Kean University, New Jersey Institute of Technology, Monmouth University, Montclair State University, Ramapo College of New Jersey, Richard Stockton College of New Jersey, Rider University, Rowan University, Rutgers, the State University of New Jersey, Seton Hall University, The College of New Jersey and William Paterson University.
[12] Alexander, supra, at 8.
[13] Id.
[14] See Tremarki v. Pearce, 2011 N.J. Super. Unpub. LEXIS 1116 holding that “enrollment is not the equivalent of actually attending college on a full-time basis; nor does attending college as a full–time student necessarily mean successful completion of at least twelve semester hours each semester. The fact-sensitive nature of the inquiry requires more than a finding that a student is enrolled in college. Here, plaintiff presented the transcript of the child that demonstrated full-time attendance through the fall of 2009. Withdrawing from one course in the 2009 fall semester and completing only one course during the spring 2010 semester is not dispositive of whether the child ceased being a full-time student.”
[15] Newburgh, supra, 88 N.J. at 545.
[16] Filippone, supra, 304 N.J. Super. at 311-12. See also, Keno v. Pilgrim, 2006 N.J. Super. Unpub. LEXIS 1451 holding that the Court cannot utilize a solitary criterion when determining whether a child have moved beyond the parental sphere (failing to maintain a “B” average in college courses) noting that early struggles at school do not take a child outside of the parental sphere and make him or her independent. On the contrary, when the child struggles in college he or she may need and rely on his or her parents even more than during times of success.
[17] Filippone, supra, 304 N.J. Super. at 308.
[18] See Zingone v. Zingone, 2009 N.J. Super. Unpub. LEXIS 1619 (denying defendant’s request for emancipation finding that although the noncustodial parent “may not be pleased with his son’s scholastic performance, it is clear that the [child] has applied much greater effort in the past three semesters than he did when initially started college” maintaining a solid “C” average and is ‘diligently pursuing’ his education in accordance with the terms of the parties PSA).
[19] The Family Educational Rights and Privacy Act is a federal law, which provides students (18 years of age or older) who are enrolled in any post-secondary educational institution, the right of privacy regarding grades, enrollment and billing information. Educational institutions are not permitted to release said information to a parent unless the student has given permission to do so.
[20] 34 C.F.R. §99.31(a)(8).
[21] 34 C.F.R. §99.31(a)(9). The Court will also accept unofficial transcripts as evidence of college enrollment. The Appellate Court in Alexander rejected the husband’s argument that the trial court erred by relying on the unofficial transcript, claiming it to be hearsay and lacking trustworthiness and reliability. Relying upon the business records exception to the hearsay rule, the Court found that the trial court’s reliance upon the document was not an abuse of discretion. Alexander, supra, at 10 citingN.J.R.E. 803(c)(6).
[22] 419 N.J. Super. 327 (Ch. Div. 2010).
[23] Id. at 334.
[24] Id.