Family Law

THE EMANCIPATED CHILD

By Fox Rothschild

We are commonly asked how long child support lasts in Pennsylvania. This is a relatively easy question to answer but one with both a history and some varying results.  By statute and case law, the duty to support a child ends when the child has reached age 18 or graduated from high school, whichever comes later. 23 Pa. 4327 et seq.; Blue v. Blue, 616 A.2d 628 (Pa. Supreme 1992).

The history of this responsibility has some interesting twists.  Beginning in 1963, the Pennsylvania Superior Court embarked upon a series of decisions finding that, in certain cases, parents could be held responsible for the support of adult children attending college. Com ex. Rel. Ulmer v. Sommerville.  For the next three decades this law evolved in a variety of ways within the Superior Court.  In 1992, however, in Blue v. Blue the Pennsylvania Supreme Court challenged the very principle that the Superior Court had such power.  The Supreme Court ruled that the Superior Court was without legal authority to direct parents to contribute to pay post majority support except in circumstances where the child was incapable of supporting him or herself through employment.

The Blue case sent a shock through the judicial system, as tens of thousands of children were already getting support while in college.  In response, the General Assembly passed a bill expressly conferring upon courts the power to direct payment of post secondary educational expenses where the parents were separated or divorced.  In 1994, the Supreme Court of Pennsylvania challenged the bill and held that to discriminate between children of intact families in contrast to separated families was a violation of equal protection.  Therefore, the court found that the statute was unconstitutional and deemed it ineffective.  Curtis v. Kline, 666 A.2d 265 (1995)

So, once again, a child who entered college in 1992 with a college support order found himself stripped of any entitlement to college support.  Interestingly, Curtis v. Kline remains the law of the Commonwealth even though the statute books still contain 23 Pa. C.S. 4327 stating otherwise.

Parents may still contract to provide for post secondary support as part of their divorce and those agreement are enforceable. Where the support order requires payment through the judicial mechanism of Domestic Relations, however, support is supposed to terminate at age 18 unless the child continues to be enrolled in high school and is pursuing a diploma.  In recent years, the courts have become adept at terminating these orders, commonly sending notices to custodial parents of the intention to terminate an order on a child's eighteenth birthday unless the custodial parents responds that the child is still in high school.  Despite the courts' action in recent years, it is not wise to rely upon the courts to address this question. Parents should be aware that, until an order is entered terminating the support, the wage attachment will continue to be collected.  And, if the support is collected and disbursed, woe to the payor who asks the Domestic Relations Section to get that money back.  Typically, the payor is told to sue the payee in small claims court for the overpayment.  This is usually not a happy result.

If you have the good fortune to be the parent of a graduating student and there is ANY question of whether the order is terminating, file a petition to terminate and ask for a conference or hearing.  If the order is administratively terminated by the judicial system, your hearing may become unnecessary. Even if you made a contractual agreement to pay support after emancipation, those payments should not be made through the court or wage attached.

If you have a child who lives with you and cannot otherwise support himself or herself, then you, as the parent, have the burden of establishing the child's dependence if you want support to continue. Com. Ex rel. Magaziner. V Magaziner, 419 A.2d 149 (Pa. Superior. 1980); Brown v. Brown, 471 A.2d 1168 (Pa. Super. 1984).  Support granted should be in accordance with the guidelines, but there is a likelihood that you will be asked what state or federal disability resources you have available to help support the child.  Also, bear in mind that any support petition you bring for an adult child must have the child's written consent.

Full post as published by Pennsylvania Family Law on June 23, 2009 (boomark / email).