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Emancipation Motions and Middlesex County College
(provided by Theodore Sliwinski, Esq.)
1. Will a parent's child support obligations end if the child is attending or enrolled in the Middlesex County College?
Parents have both a moral and legal obligation to financially support their child from the moment that child is born until that child becomes emancipated. In simple terms emancipation is defined as the time when a child is or is expected to be self-sufficient or self-supporting. There is no fixed time or age when a child becomes emancipated. For example, a child is not automatically considered emancipated on his or her 18th birthday. Generally a child is not deemed emancipated until he or she has completed their education. Whether or not a child should be expected to be self-supporting, depends on the facts of each case. Nonetheless, if your child is attending Middlesex County College, or if he is enrolled there then you have almost zero chance (Nada for any Spanish web surfers) to win your emancipation motion.
In every emancipation motion the family court judge has wide discretion on ruling on these motions. Each motion is very fact-sensitive and stands on its own merits. Please keep in mind that New Jersey has the most liberal child support laws in the United States. In most of the states once a child graduates from high school then the child is automatically declared emancipated. This is certainly not the case in New Jersey! I have even handled a case wherein the family court judge would not order a 22-year man emancipated while he was studying to become a priest at a Divinity College.
There are many games that are played once the custodial parent receives an emancipation motion in the mail. In many of the emancipation motions that I file, the child immediately enrolls into Middlesex County College or into another local community college such as Brookdale, Union County College, Mercer County College, or Ocean County College. It is not that difficult at all for a young person to enroll into the Middlesex County College. It is not that difficult to get into Middlesex County College. Nonetheless, the education that you can receive here is top notch. Usually, the custodial parent pressures her son or daughter to enroll into Middlesex County College so that she will not lose her child support payments. A key question is whether the emancipation motion is still viable even if the child is now attending or enrolled into a community college. The answer to this question is that you will lose your emancipation motion if your child is enrolled into community college. The judges are very loathe to emancipate any child if he or she is trying to get any type of college education. Thus, if this scenario is similar to your own situation then you should try to withdraw your emancipation motion, and then try to reach an amicable agreement with your ex-spouse via a consent order.
An important side note is that in most emancipation motions wherein the child is attending Middlesex County College, the local judges require the child and the custodial parent to provide concrete proof of attendance within 7 to 10 days after the motion is decided. Moreover, most judges will require the child to take at a minimum 12 credits at the Middlesex County College. If you are the child support payor, and if your child is now attending Middlesex County College then you should be vigilant to make sure that your child is actually going to class. In the family court world many families are dysfunctional and all types of games are played. I have seen many cases wherein a payor parent has overpaid thousands of dollars of child support when his child has actually quit Middlesex County College many months or even years earlier. Thus, in any type of emancipation litigation you should always request that the court impose a duty on the custodial parent and on the child to immediately notify the payor if the child quits or withdraws from Middlesex County College. Moreover, the payor should also request that the court order the child to provide report cards and grades to him every semester.
Another game that people play is that the child only enrolls in a few classes. In any type of emancipation litigation you should request that the court order your child to enroll in 12 credits, and that he must not be enrolled on only a part-time basis. I have heard of people taking 4 to 5 years just to finish Middlesex County College. Don't fall into this trap! You should insist to the court that your child must be enrolled in Middlesex County College on a full time basis.
2. Are there any recent cases that address emancipation issues and a child attending Middlesex County College?
Yes, a very recent case is Bellino v. Presper, A-1624-08T1, and it was decided on May 21, 2010. This case addressed the issue as to whether the defendant's daughter could be deemed emancipated even though she was attending Middlesex County College. Here, the defendant appealed from the family court's order that denied his motion to emancipate his then twenty-year-old daughter. The court reversed the case and it was sent back down to the Middlesex County Family Court for a plenary hearing. One of my themes in my website is that plenary hearings are expensive, arduous and it is similar to having your second round of your divorce case.
A judgment of divorce was entered on November 16, 2004. The Property Settlement Agreement provided for plaintiff to be the residential custodial parent of the parties' two daughters and for defendant to pay child support for the minor children until they are emancipated, defined by the parties, in pertinent part, as follows:
An emancipation event shall be deemed to occur upon the first happening of the following:
a) Completion of High School, if the child does not attend college within one (l) year; provided, however, the child has attained the age of eighteen years. In the event the child attends college, emancipation shall not occur until after the child has completed an undergraduate college education, so long as the child pursues college education on a full time matriculated basis continuously unless the child does not attend continuously due to injury or illness of the child.
b) Engaging by the child in full-time employment, except that engaging by the child in full time employment during school vacation and summer periods shall not be deemed an emancipation event.
c) Marriage of the child even though such marriage may be void or voidable and despite any annulment thereof.
On July 2, 2008, the defendant filed a motion to emancipate his older daughter, who was born in l988. The parties provided certifications. The defendant certified that the parties' divorce was contentious and he "had absolutely no contact or communication of any kind" for the last two years with plaintiff or the children, despite correspondence sent to the plaintiff in November 2007 requesting documentation regarding their daughter's school enrollment. Their daughter graduated high school in 2006 and attended Middlesex County Community College for the 2006-2007 school year.
Meanwhile, the plaintiff confirmed that their daughter became a full-time employee at Princeton Sports Club in the summer of 2007, and she worked there through June 15, 2008. According to the plaintiff, their daughter worked full-time during the day and attended evening classes at Raritan Valley Community College in the fall of 2007, but took a temporary leave for the spring 2008 semester. The plaintiff represented that their daughter would be returning to Middlesex County College in the fall of 2008. The daughter was scheduled to take classes during the day, and she provided a copy of her registration to the court. The plaintiff also certified that their daughter "realized that working hindered her ability to study and she wants to diligently pursue a college education." In his reply certification, the defendant stated he ascertained that their daughter dropped a class and had only three classes (nine credits) for the fall 2007 semester. The defendant also informed the court that his daughter became pregnant and had a child in early September, and her boyfriend, who was earning in excess of $40,000, was living with her at plaintiff's house. Their daughter acknowledged that although she enrolled as a full-time student at Raritan Valley Community College in the fall of 2007, she was dropped from one class due to "lack of participation," leaving her two night classes and one on-line class. She claimed she did not attend college for the spring 2008 semester because the college would not let her enroll for classes due to her inability to pay the final installment of $389.63 for the fall 2007 tuition, which she requested from the defendant without success. She expressed a desire to continue to attend college. Neither plaintiff nor the parties' daughter responded to defendant's allegation respecting the pregnancy or employment and residential status of her boyfriend.
The Middlesex County Family Court denied the defendant's motion to emancipate his daughter. The judge concluded that she was enrolled as a full-time student for the fall 2007 semester, apparently because the college did not treat her dismissal from the Nutrition class as a failure for her GPA and still charged her for the course, even though she admitted she was dropped from the course "6 to 7 weeks into the Fall semester" for not attending.
Additionally, the judge appears to have blamed the defendant, at least in part, for her withdrawal for the spring 2008 semester, even though defendant may have been under the impression he was not obligated to contribute towards Raritan Valley Community College tuition based on the February l6, 2007 order that absolved him from liability for the Middlesex County College tuition, apparently under the Newburgh v. Arrigo,, 88 N.J. 529 (1982). The judge further found that her re-enrollment for the fall 2008 semester "evidences her intent to continuously pursue her undergraduate education," and thus concluded she was not emancipated, which the judge determined under the parties' Property Settlement Agreement to mean a year or more hiatus.
Thereafter, the defendant father then appealed. On appeal, the defendant argued: (1) the court erroneously determined emancipation was not warranted by failing to properly consider that the parties' daughter was employed on a full-time basis, which was one of many conditions triggering emancipation under the Property Settlement Agreement; (2) her enrollment status for the fall 2007 semester is still an issue of material fact that warrants further proof or a plenary hearing; and (3) emancipation was warranted as she moved beyond the "sphere of influence" of her parents by foregoing schooling, working full-time, and choosing to start a family on her own while she was capable of financially supporting herself.
The Appellate Division agreed with defendant/father that further discovery and a plenary hearing was required. The court held that generally, "emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh, supra, 88 N.J. at 543. The issue of emancipation is very fact sensitive. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). Its 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." Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006);(quoting Filippone, supra, 304 N.J. Super. at 308). This determination requires "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." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).
The court also noted that although the Property Settlement Agreement provided the child would not be deemed emancipated if she were "pursuing college education on a full time matriculated basis continuously unless she does not attend continuously due to her injury or illness," it also provided she would be emancipated if she were engaged in full-time employment other than "during school vacation and summer periods." Their daughter worked continuously on a full-time basis from the summer of 2007 through at least June 15, 2008. It is undisputed she attended no classes for the spring 2008 semester classes she enrolled in for the fall 2007 semester.
The Appellate Division also held that in determining the legal issue of emancipation, the family court needs to clarify her enrollment status for the fall 2007 semester, as well as her employment status and earnings. In addition, the court held that although the daughter's own motherhood alone does not render her emancipated, Filippone, supra, 304 N.J. Super. at 309, the fact she may be receiving some minimal financial support from the father, depending upon their financial circumstances and living arrangements, she may be beyond her parents' sphere of influence and responsibility and capable of supporting herself financially.
In summary, the court remanded the case for discovery and a plenary hearing. The Appellate Division also noted that the family court must consider whether the daughter resumed full-time college for the fall 2008 semester and her subsequent educational status, work history, and other relevant factors. The Appellate Division emphatically held that it makes no determination as to the merits of defendant's application.
3. Please cite any other cases that address emancipation and a child attending Middlesex County College?
Another illustrative case is O'Neill v. O'Neill, Docket No. A-3623-04T1. This case also addressed whether a child could be deemed emancipated even though she was enrolled in Middlesex County College. In this post-judgment matrimonial proceeding the defendant, who was the ex-husband, appealed from an amended order entered without a formal hearing on February 14, 2005, which: (1) denied his application to emancipate his daughter, Shannon; (2) required the submission of a completed case information required the filing of case information statements to consider defendant's contribution to Shanon's college expenses; and (3) required him to pay $1,391.44 in medical expenses for Shanon.
The parties were married on May 24, 1980, and they were divorced on June 20, 1989. Their marriage produced three children, William, Jr., of full age who resides with defendant and whose status is not in dispute; Brian, age 23 who resides with plaintiff, and Shanon, a daughter age 21. The plaintiff who was the ex-wife appeared pro se during the motion hearing and she filed a response certification.
The defendant filed his motion with the family court to have his daughter Shanon be declared emancipated. The plaintiff also filed a cross-motion for the payment of child support arrears, an accounting of the proceeds inherited, payment of past due medical expenses incurred for Shanon, and for contribution toward Shanon's college tuition.
The court held that it appears that probably before she finished high school, Shanon gave birth to a child who has since been adopted by plaintiff, the child's grandmother. Shanon lived for a time with her boyfriend but now lives back at home with her mother. She has finished high school and appears to be presently enrolled at Middlesex County College. In the evening, Shanon works at a bowling alley claiming her income helps defray the costs of her college tuition. The trial court concluded that Shanon has not moved beyond the sphere of influence of her parents, see Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997), and ruled that she was not emancipated. The court noted that it was not known how much Shanon works, how much she earns, whether her job provides health insurance, or the cost of her college tuition. The judge ordered case information statements to be submitted by the parties. R. 5:5-2(a).
To summarize, the Appellate Division held that an emancipation dispute is a serious matter, and it should not simply be decided on reviewing the filed papers. Thus, the case was reversed and sent back down/remanded to the family court for a plenary hearing.
4. Please provide some additional legal authority on emancipation of a child who is attending county college?
Another relevant case is Finch v. Finch, A-1154-04T3. In this post-judgment matrimonial action, the defendant appealed a court order that required him to pay 70% of his oldest son's college expenses and for other incidental costs. On appeal he alleged that the family court committed an error because it did not issue an order to emancipate his son.
The Middlesex County Family Court held a plenary on the issues of the defendant's payment of child support and college expenses for the parties' son. The court further ordered the defendant to pay all of his son's college expenses and transportation costs . At the plenary hearing the defendant also argued that his son should be emancipated simply because he was eighteen years old. Although the defendant conceded he was financially able to contribute towards his son's support, college and transportation expenses, he also argued under Newburgh v. Arrigo, 88 N.J. 529 (1982) and related cases, that he should be absolved from any obligation to do so because plaintiff alienated his son's affection and his son gave him "no love or respect" and shut him out of his life. There was extensive discussion of the Newburgh factors and a number of documents were marked into evidence, including the court's thirty-page written decision following the divorce trial.
Ultimately, the family court denied the emancipation motion. The court made specific findings that the son still remained within the "sphere of influence" of his mother and at this point in his life he did not have the vocation, skills or emotional maturity to support himself. The court was hopeful that the special program at Middlesex County College would provide direction and skills, and would steer him towards part-time employment after an adjustment period at school.
The court also discussed at length each of the twelve Newburgh factors and ruled that appellant was obligated to pay his share of his son's college, incidental and transportation expenses. After reviewing the financial information, the court concluded that defendant's hare was 70% and that his contribution towards the first semester's tuition was $975, exclusive of books and lab fees. Additionally, the plaintiff was obligated to inform the defendant defendant if their son received financial aid, at which time the parties would re-evaluate their respective contributions toward his college education. transportation costs. Child support for their son was determined to be $64.62 per week.
On appeal, the Appellate Division held that the evidence in the case fully supported the family court judge's determination that the parties' son was not emancipated even though he was eighteen years old. The court noted that his disabilities weakened his ability to live on his own and he was clearly still under the influence of his mother. He lived at home while attending a program for students with special needs at Middlesex County College. He suffered from longstanding emotional and social disorders, which made it extremely difficult for him to interact in society, make friends and keep employment. As a result of all these factors, the son still remained dependent on his parents for financial as well as emotional support.
Finally, the court noted that there was no question that the defendant and his oldest son no longer shared a relationship. The family court judge recognized it was an unfortunate situation but also found, and the record supported such a finding, that neither his son nor mother was responsible for the deterioration of the relationship. Moreover, as the family court judge mentioned on several occasions, the loss of affection is not dispositive under Newburgh. The family court judge also noted that it was merely one factor to consider in determining a parent's contribution for education. In summary, the Appellate Division upheld the family court's decision, and it held that the child support award and college contribution ruling was clearly justified under the totality of the circumstances. The court based their decision based on his son's disabilities, the defendant's earnings and on the modest cost of his son's education.
5. My son recently took a "break" from attending Middlesex County College, and he is now working full time. My son insists that he is only on a temporary hiatus from college. If I file for his emancipation will I prevail at court?
Each emancipation case is reviewed on its individual facts and circumstances. In my experience most judges would emancipate the child. However, many judges would insert language in the emancipation order that specifies that if the child re-enrolls in college that the child support could be reinstated. Illustrative is the case of Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999). Here, the court denied a motion to emancipated a child who was working full time while on a temporary hiatus from college. The appellate court agreed that a brief hiatus between high school and college is common place. Moreover the court held that a child's rights to parent contribution to college should not be summarily denied.
In summary a short gap in a child's college education does not lead to automatic emancipation. Another illustrative case is Conway v. Conway, A-0075-05T1 (App. Div. Aug. 23, 2006). In the Conway case has many issues. Here, the parties' a child was declared emancipated even though there was no motion to emancipate, child support was reduced without any consideration of underemployment, and the father did not want to pay for any college contribution because he was not involved with the choice of college.
The parties were divorced in May 2004. At the time of the divorce the parties had one child named Jennifer and she was still unemancipated. In September of 2004 she went to Drexel University as a full-time college student after a one year gap. The defendant mother, filed a motion in June 2005 to enforce litigant's rights as the plaintiff father had stopped paying her support after let go laid off from IBM. At the motion hearing in August 2005, the judge ordered that Jennifer was emancipated retro to January 2004. In January of 2005, Jennifer first stopped attending community college. However, neither party ever requested that their daughter Jennifer should be declared emancipated. Instead, the judge, sua sponte or on its own, emancipated Jennifer and determined that no child support did not have to be paid while she was at college. The wife then filed an appeal. The Appellate Division held this was a mistaken exercise of the court's discretion and they reversed the emancipation order.
At the time of the divorce in May 2004 Jennifer was working on a part-time basis after she community college in January 2004. In the parties' Property Settlement Agreement it contained a provision that provided "in the event Jennifer returned to school on a full time basis, the college tuition would be borne in proportion to the parties respective incomes after utilization of any funds set aside for Jennifer." The New Jersey family courts have consistently enforced; "Fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Smith v. Smith, 72 N.J. 350, 358 (1977). In the absence of changed circumstances, the family judge should have afforded deference to the parties agreement that they intended to support Jennifer if she ever went back to college. In summary, each emancipation case is fact-sensitive. Here, Jennifer had a break at the time her parents were divorcing, and there was no evidence that she had become independent of her parents. The courts always give the benefit of the doubt to the child, and they are loathe declare a child emancipated.
6. What are the major lessons to be learned from reviewing the above case law?
There are several lessons to be learned from reviewing the above case law. First, emancipation motions can really explode into absurd and lengthy litigation. There is a major trend now in the family courts to turn many contentious motions into plenary hearings. In the past the family courts would simply rule on the motion papers and make their decision. Now if there are material issues of disputed facts in the motion papers then the current case law indicates that a plenary hearing must be held. Plenary hearings entail conducting discovery, preparing for the hearing, and dealing with endless adjournments. There is a tremendous shortage of family court judges in many County Courts. Lawyers must also charge their client decent money to represent a litigant in a plenary hearing. Moreover, most judges want copies of the exhibits to be sent to the court a few weeks in advance of the hearing date. Many judges want a trial memorandum and written summations. Some judges create a significant amount of work for the lawyers and litigants to prepare for a plenary hearing. One of the reasons why the judges demand "loads" of pre-trial work is it because it is a very useful incentive to force the parties into making a settlement. Sometimes this strategy works like a charm and sometimes it doesn't.
Second, never take it for granted that you will win your emancipation motion. In many cases, once the custodial parent receives the emancipation motion she will force the child to enroll into Middlesex County Community College. I have not seen any judge ever emancipate any child if there was proof that the child was enrolled into Middlesex County College. If an emancipation order is entered this translates into many thousands of dollars of lost child support the custodial parent. Moreover, health insurance will be cut off for the child. Thus, people get very desperate once they receive an emancipation motion. In many of the cases, the custodial parent will not "go down without a fight." In short, file your emancipation motion but don't bet the "ranch on it." As we all know surprises are the spice of life.
Third, don't get OCD about your motion. If your son or daughter tries to make a go at attending Middlesex County College then try to be happy. At least your child is trying to make it in our tough world. Keep your eyes on the big picture, you want your child to be successful. In today's world everyone needs some type of education or skill training to get a decent job. I am sure that you want your child to be successful, so if you receive opposition papers that inform you that your son or daughter is now enrolled into Middlesex County College don't be ridiculous and cry like a baby.
Fourth, plenary hearings to determine emancipation can be just senseless. I don't agree with the court's logic to hold plenary hearings to determine whether a child should be emancipated. Preparing and trying plenary hearings is a very time-consuming and arduous process.. The typical legal fees to prepare for a plenary hearing are about $2,000 to $5,000. The amount of these legal fees could be used to pay for your child's college education. Thus, many litigants lose sight of the big picture, and they ultimately spend thousands of dollars on emancipation litigation. Unfortunately, these monies could have been used to pay for the costs of Middlesex County College. I don't know how emancipation jurisprudence got so convoluted and complicated but it has become in my humble opinion a mess.
Fifth, if you lose your emancipation motion, then you should try to insist that the court order that the custodial parent and the child must provide you with periodic proof that the child is enrolled. I have seen many cases wherein a non-custodial parent has overpaid thousands of dollars of child support after his child has quit Middlesex County College. Your chances of recouping these overpaid monies are the same odds as finding "Big Foot" or the "Loch Ness Monster." Therefore, you must request that the court create some type of mechanism to provide you with proof that your child is currently enrolled and is still going to his or her classes at Middlesex County College.
Information provided by:
Theodore Sliwinski, Esq. located at
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