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Equal Protection vs. Parental Autonomy

By Charles F. Vuotto, Jr., Esq.

CAVEAT: All references below are to discussions occurring on the NJSBA Community’s Message Board with permission of each of the referenced authors.

Many of us have recently seen reports of the Morris County case involving an 18-year old high school senior who left her parents’ home (either voluntarily according to her parents or forced to leave according to her), suing for financial support and to compel her parents to pay for her education. Allegedly, this young lady is a cheerleader and lacrosse player at Morris Catholic High School who wants to be a biochemical engineer. She filed a lawsuit in the Family Part of the Superior Court, Morris County seeking the judge’s declaration that she is not emancipatedand dependent on her parents for support. However, when she initiated suit she was not living in her home and, in fact, was living with a family of a friend who appeared to be funding the litigation. Thankfully, Ms. Canning voluntarily decided to dismiss the complaint and it appears that young Ms. Canning has moved back in with her parents and family reunification is underway. I am sure that this is due in a small part to the sensitive manner in which the judge handled the initial application. However, putting aside the factual contentions between this young lady and her parents, the case raises interesting issues regarding the apparent conflict between equal protection and parental autonomy. It also impacts issues of jurisdiction and emancipation.

Is there a conflict between New Jersey law that requires divorcing or divorced parents to contribute to their children post-secondary educational costs while there is no corresponding obligation of parents in an intact family? At first blush, there would appear to be some inconsistencies in law. Debra Guston, Esq. made an interesting comment that we might have to reconsider the definition of emancipation in light of college being the “new high school” for most young people’s career prospects. Ms. Guston commented that, “our society has to embrace a commitment to all young people’s higher education. Either we have to make meaningful higher education really inexpensive so kids can afford it on their own – or parents have to have some longer term obligations to assist their children. We can’t have another generation of people coming out of college or graduate school hundreds of thousands of dollars in debt and compete with nations that provide free higher education to their young people.”

As to the jurisdictional issues raised, Jenny Berse, Esq. referenced R.5:6A and comment 2.2.1, which reads “although an emancipated child has the right to intervene in one parent’s action to compel the other parent to contribute to college expenses, an unemancipated child may not, the custodial parent being deemed to be protecting that child’s interest.”[1] However, those cases relate to divorcing or divorced families and not an intact family.

As correctly noted by Curtis Romanowski, Esq., there was an attempt to push through litigation in the early 90s that actually cleared one house of the legislature by a landslide, doing away with the required contribution to post-secondary education expenses even in the context of divorce. As very aptly explained in the column by John P. Paone, Jr. entitled “Bar Opposes Ban On College Education”[2]The New Jersey State Bar Association strongly opposed the proposed legislation based upon the best interest of New Jersey’s children (as noted in more detail below).

Gary Borger, Esq. commented by reference to the unreported case of Orero v. Orero[3], which noted “We find no merit to defendant’s argument that compelling a non-custodial parent to contribute to college expenses when such an obligation is not imposed upon a parent in general is a violation of the Federal or State Constitution. The GAC court specifically declined to consider the issue since it had not been raised below.[4]

A number of attorneys commented on Equal Protection and parental authority issues.  Specifically, Richard Diamond, Esq., responded that this was reminiscent of the grandparent seeking visitation against the parents of an intact family where the married couple did not want the grandmother to visit with their child. Mr. Diamond cautioned that the concept of the pendulum swinging too far to a side, ruling in the daughter’s favor could very easily be the pendulum swinging wildly and perceived by the public as outrageous and an undue infringement into the intact family structure. Hanan Isaacs, Esq., responded that “children are children, regardless of their parents’ marriages—or if their parents ever married.”  Mr. Isaacs also questions if the value of higher education is so elevated, then why restrict its mandate to adult dependent children of divorcing parties?  If the value of higher education is not elevated enough to impose on intact households, then why force divorcing parties to fund it? “ As Emerson said, ‘A foolish consistency is the hobgoblin of little minds.’  What do we call a foolish inconsistency? A violation of Equal Protection under the law, perhaps,” said Isaacs.

Nancy Marchioni, Esq. thought that it would be interesting to see whether the court will go so far as to state that Newburg[5] and its progeny applies to all parents, regardless of marital status. She commented that, the one factor in this case that will be critical is whether this young lady is emancipated or not. This is not simply a case where the daughter is saying, “I want to go to college; you have the financial resources to pay for it; your refusal to do so is preventing me from pursuing my education.” Rather, the factual “fly in the ointment” in this case is that this young lady is no longer living under her parents’ roof but still wants them to foot all of her educational bills – claiming they kicked her out; parents are claiming she left of her own freewill. If the court finds that she left voluntarily, it may not need to make a decision as to whether the obligation to provide for a college education extends to an intact family.”

Faith Ullmann, Esq. commented that the court’s interim decision did not favor the 18-year old, but did not deny all relief. A review of the papers by Ms. Ullmann concluded that it appeared that the primary issue before the court was whether the court has legal authority to make determinations of support for an 18-year old child of an intact family. The judge denied temporary child support for the child on March 5th and further denied the daughter’s request for her parents to pay for her last year of high school at Morris Catholic. The judge set a review hearing for whether the parents should pay for her college expenses, apparently taking into consideration any college funds earmarked for the child’s higher education. Ms. Ullmann commented that if the court awards such relief, it would seem inconsistent with its preliminary decision denying private school contribution and temporary support. Ms. Ullmann further comments that indeed, the court has the jurisdiction to order such relief relative to divorced families—setting up an Equal Protection argument. If the judge orders the parents to fund the child’s college education (right or wrong) Ms. Ullmann notes that this would certainly open the door for many “adult” children to sue their parents to fund higher educational costs. She closed her comments by stating, “Sounds like family therapy may be the right way to go!”

Mark Gruber, Esq. commented that the entire case may impact the holding in Newburg v. Arrigo since the Equal Protection arguments have not been “squarely addressed by the New Jersey Supreme Court.” He further comments that, “How do children of separated or divorced parents get more rights than children of intact families? Does estrangement of children and parents give the children more rights than families without estrangement?” Mr. Gruber concluded his comments by stating that, “If this case goes up, Newburg may go down at some point soon thereafter.”

Retired Superior Court Family Part Judge, Thomas Dilts, J.S.C. (ret.) made the following astute observation:

While it is possible a higher court decision could impact Newburgh, I think it is unlikely. The parens patriae doctrine is the underpinning to the right of the State to intervene into the family affairs of divorcing parents. That is, because the family unit is no longer intact, the child is at risk of being neglected or even abused by divorcing parents and the Legislature and the Court are permitted to intervene to act to protect the child by ensuring that support and education are provided.

Equal protection disparities abound in family law. What about the right of non-custodial parents to relocate out of New Jersey without court approval, whereas the custodial parent must have consent or court approval? This is probably the most obvious example. And yet, the best interests of the child provide a legally sufficient basis for the exercise of its parens patriae powers and is legally sufficient to sustain this obviously unequal result.

It is difficult to imagine a scenario where the fundamental (and constitutionally recognized) right of intact parents to raise and control their 18-year-old children as they see fit and make judgments that parents have been permitted to make would be disturbed. The Supreme Court decision in Troxel v. Granville, and its progeny, support the right of non-divorcing parents to make these judgments. “The interest of parents in the care, custody and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.” 530 US at 65 (2000). There are limits to the power of the State to intervene–both legal and practical. The current focus certainly gives an opportunity to articulate the limits, rights and responsibilities of parents–and children.

Interesting questions–and interesting times.

Noting with empathy the plight of the parents involved in the Canning matter, Rosalyn Metzger, Esq. suggested that this case should have been handled by Alternate Dispute Resolution with the assistance of counsel and mental health professionals.

I wish to thank the many contributors to this discussion as referenced above and apologize to those that I may not have quoted. Many people commented upon this interesting issue. It is unclear where this case is going to go and what the ramifications may be. I do believe, however, that input is necessary from the Bench and Bar. For my part, I have trouble with the apparent inconsistency, but could never imagine the law permitting such an invasive intrusion into parental authority in the context of an intact family. It must be presumed, with the exception of providing basic necessities and in the absence of abuse or neglect, that intact families adequately attend to the needs of their children. These families have not put themselves before the court. It is only when that occurs, whether due to separation, divorce, abuse, neglect or other legal construct placing the family before the court system that the State is then permitted to step in under its parens patriae(jurisdiction to make sure that the needs and rights of children are protected. However, where the family is not thrust before the court, whether voluntarily or involuntarily, the fundamental constitutional rights associated with parent rearing must be protected. This is only one person’s view and I certainly welcome others.

The primary reason that the Bar opposed the legislative proposal banning Family Court Judges from compelling divorcing parties to pay for their children’s college education was based upon the best interest of New Jersey’s children. Mr. Paone stated that children who have an expectation of college education because their parents have the ability to pay, and because the children are academically worthy, should be provided with a college education. Mr. Paone asserted that New Jersey should be concerned about educating its children, especially in the new world economy where having an educated workforce is imperative. He explained that the State should have a strong interest in seeing that parents properly educate their children. Mr. Paone cautioned that if the legislative proposal to ban Family Court Judges from compelling divorcing parties to pay for the college education of their children is passed, then the courts will be inundated with post-judgment applications in cases where parents previously agreed to accept responsibility for the college education of their children. There also will be lawsuits filed by children under theories of contract and the unemancipated child’s right to support.[6] Such a bill would put children directly in the line of litigation against their parents. Finally, the Bar opposed the legislation to address other legitimate issues in the college education controversy. Mr. Paone explained that the courts must ensure that in cases where children have voluntarily terminated their relationship with a parent, the court should not compel a parent to be nothing but a “blank check” to the child. A child who does not earnestly pursue a college education on a full-time basis upon graduation from high school should be declared emancipated. Children who are not academically able to pursue a bona fide college education, should not be permitted to take “basket-weaving” courses for four years. In cases where parties do not have the financial ability to pay for college, children should be required to pursue student loans, grants, scholarships, and other monies, including income earned through part-time employment. The Family Law Section felt that the ban on college education was ill-advised legislation.[7]


[1]White v. White, 313 N.J. Super 637 (Ch. Div. 1998), Johnson v. Bradberry, 233 N.J. Super 129 (App. Div. 1989), recognizing the right of an adult child to sue either parent for college assistance under either a contract theory or the guidelines of Newburg v. Arrigo, 88 N.J. 529 (1982). It should be noted that Ron Lieberman, Esq. commented on the reference to Johnson v. Bradberry and pointed out that the current situation regarding Ms. Canning is much different than the Johnson matter where it involved the child of divorced parents suing for payment of college costs. Mr. Lieberman commented that divorced parents put themselves before a court for resolution of issues, whereas intact families do not.

[2]Gomez Subpoena response/deposition date -NJFL, Volume 15, Issue #4.

[3] 210 WL 596980, App. Div. 2010.

[4]186 N.J. at 547, 897 (A.2D 1018) “The defendant provides no support for his argument.”

[5]Newburg v. Arrigo, 88 N.J. 529 (1982).

[6]See Johnson v. Bradbury, 233 N.J. Super. 129 (App. Div. 1989).

[7] The article was published in New Jersey Family Lawyer, Volume XV, No. 4, July 1995.

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