Emancipation & Full Time College Status

The interplay of “emancipation” and “college” were recently explored in the unpublished Appellate Division case of Alexander v. Alexander.[1] The case raises an interesting question: How do we define full-time college enrollment to stave off a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 of Newburgh 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.

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