A Not-So Empty Nest and Child Support

Many people presume that child support automatically terminates upon a child’s attainment of the age of majority. However, whether an ex-spouse is entitled to continue to receive child support past that time is not so black and white. The New Jersey law which addresses “emancipation” for purposes of terminating child support was recently amended and becomes effective February 1, 2017.

The obligation to pay child support terminates by operation of law (i.e., no court order is required) when the child marries, dies or enters military service. The obligation also automatically terminates when the child reaches the age of 19, unless:

  •          another age for the termination of child support (not to exceed the date the child turns 23) is specified in a court order;
  •          a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or
  •          the child receiving support is in an out-of-home placement through the Division of Child Protection and Permanency.

            In making a written request to seek a continuation of child support past the age of 19, the custodial parent should specify a proposed termination date for child support and supply evidence demonstrating that:

  •          the child is still enrolled in high school or other secondary educational program;
  •          the child is a student in a post-secondary education program and is considered to be a full-time student by the school; or
  •          the child has a physical or mental disability, as determined by a federal or State government agency, that existed prior to the child reaching the age of 19 and requires continued child support.

In a recent opinion, a New Jersey appellate court grappled with the issue of continued dependency of adult children with alleged disabilities. Though the case implicated the then-current statutory law, it sheds light on how courts may continue to address this issue going forward.

In Turkheimer v. Burke, the custodial mother appealed the trial court’s order finding that the parties’ 19-year-old son was emancipated and terminating the father’s child support obligation. After conducting a hearing, the trial court found that the son had reached the age of majority, graduated from high school, and was enrolled in a course at community college, and that no evidence was presented showing that he was disabled and incapable of supporting himself. On appeal, the mother argued that the trial court did not take into consideration the fundamental dependent relationship between the child and his parents, that the son was disabled and that custody had not been relinquished which would allow the father to be relieved of his obligation.

The parties’ marital settlement agreement (MSA) contemplated child support to be paid by the father until emancipation, defined to include, among other events, completion of high school. The MSA stated that the child would be emancipated at the age of eighteen if he did not attend college. Moreover, the MSA provided that if the child attended college, emancipation would not occur until after the child completed four continuous academic years of college education with reasonable diligence, but in no event would support extend beyond the child’s attainment of 23 years of age, unless the delay in completion of education was caused by injury or illness of the child.

Only the parties testified at the hearing. Neither party submitted expert testimony and the son did not testify. Two exhibits were submitted into evidence: a list of stipulated facts and a high school grade report. At the time of the hearing in October 2014, the parties’ son lived at home, was unemployed and was enrolled in a single course at the local community college. The child graduated high school in June 2014, a year behind schedule, due to poor grades.

While in high school, psychologists and social workers reviewed the child and concluded that he suffered from emotional problems which affected his academic performance.  He was considered “multiple disabled.” As a result, the school district formulated an individualized education plan which contemplated weekly counseling. Aside from the counseling provided at school, the child received virtually no psychiatric care or psychological treatment for his issues and was never determined to be disabled by the Social Security Administration or other evaluator.

Following the hearing, the trial judge found that the mother had the burden to rebut the presumption of emancipation and failed to do so. Moreover, the trial judge found that the financial support provided by both parents, at that point, had become voluntary and that while it is common for parents to continue to support an adult child due to his or her “failure to launch,” an adult child who has completed his education and is without disabilities is considered emancipated under the law.

The appellate court affirmed the lower court’s ruling, finding that a child’s reaching the age of majority is prima facie, but not conclusive, proof of emancipation. Once the presumption is established, the burden of proof shifts to the custodial parent to rebut the presumption. One such way to do this, the court found, is to demonstrate a continued disability. However, the court held that the disability must interfere with the child’s ability to become independent in order to rebut the presumption. In this case, the appellate court noted that the mother had the opportunity to provide evidence from experts, but failed to do so. The court found that the school reports were not an adequate substitute for expert testimony, as they did not support the contention that the child suffered from a disability which prevented him from moving beyond his parent’s sphere of influence.

This opinion is helpful to parents who anticipate a need for support beyond the statutory time of termination.  First, expert testimony may be necessary to rebut the presumption that the child is emancipated. Second, proof of disability may be insufficient if it does not interfere with the child’s ability to become independent. Third, it is important to remember that the MSA can be negotiated with respect to each party’s child support obligation. As the trial judge highlighted, payments beyond the statutory framework are voluntary. Those extended, voluntary payments can be negotiated between the parties. Using the newly amended language of the statute as a guidepost, parties with children, especially those with known disabilities, can anticipate the need for greater support than that contemplated by the statute and negotiate it as part of the MSA, eliminating the need for judicial intervention. Those who must resort to seeking assistance from the court can use this opinion as guidance as to what a court may require before ordering additional child support on the grounds of disability.

 Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.