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Mary Jane Leland, Esq.
Leland Law Firm, LLC
Ellis Law Center
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Phone: (732) 409-7777
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“I am not an ATM machine!” When a non-custodial parent is not obligated to pay for higher education costs.

As we know, raising a child is important and expensive.  When two parents divorce, their marital settlement agreement may have a provision that each of the parties will contribute toward their children’s education in proportion to their income and assets when the time comes.  New Jersey is unique in that both parents have an obligation to contribute toward their child’s higher education. 
Child support and higher education are related.  There is an end point where child support is no longer necessary.  Typically, this occurs when the child is considered emancipated.  A court determines a child is emancipated when the child has moved ‘beyond the sphere of parental influence and has obtain an independent status of his or her own.’ 
Although reaching the age of majority (18 in New Jersey) creates a prima facie case for emancipation, enrollment in college often extends the period of time that the non-custodial parent is required to pay child support.   New Jersey courts do not deem a child as being emancipated when the child is attending college (taking 12 credits or more) or trade school.  However, the custodial parent must include the non-custodial (NC) parent in the selection process, advise the NC parent as to costs, and allow the NC parent to fully participate.   If the non-custodial parent is excluded from participating in the selection process, his or her obligation to pay higher education costs may be discontinued.
The Appellate Division in Moss v. Nedas terminated a non-custodial father’s obligation to pay toward college because of the lack of communication between Mom and Dad.  In Moss, the parties agreed to share the cost of their daughter’s college education in proportion to their ability to contribute.  In 1994, the father was ordered to pay $12,000 of the total ($27,000) for the parties’ daughter to attend Sarah Lawrence College.  Unbeknownst to the court and the father at the time of hearing, the daughter applied to and was accepted to yet another college, Skidmore, just prior to the Court’s order.  When the father did not pay the new school, the mother sought an order compelling payment by the father.  Upon review of the case, the Appellate Division found a total lack of communication between the parties regarding the daughter’s education, and found the custodial parent/Mom was viewing Dad as ‘a wallet.’  Despite prior court orders clearly requiring Mom to communicate with Dad regarding education progress and plans, she never sought his opinion or included him in the process.  In addition, there was no meaningful relationship between the father and daughter.  Given the fact that both the mother and the daughter excluded Dad from the process, the Court ruled that it was no longer appropriate for Dad to share the cost.
The Family Part of the Superior Court in Ocean County expanded upon the issue of paying higher education costs in Van Brunt v. Van Brunt by terminating a parent’s obligation to pay child support for failing to provide proof of higher education.  In Van Brunt, the two divorced parents expressly agreed to consult with each other regarding their child’s higher education and agreed their child would remain unemancipated if the child continued to attend four years of college.  The defendant/father sought verification of his daughter’s full-time collegiate status three times within one year and received court orders requiring production of a) a list of all courses taken by their daughter, b) copies of her report cards, and c) verification of her enrollment. Without production of the requested documents, the court would consider the child emancipated as of the date the defendant filed his first motion seeking verification.  On defendant’s third application for requested proof, plaintiff specifically objected to production of her daughter’s records alleging their daughter has a right to privacy in her records pursuant to the Federal Education Rights and Privacy Act (FERPA).  Although students have certain privacy rights, the Court held FERPA couldn’t be used as a sword to block the father’s right to verify the daughter’s ongoing collegiate status.  The basis for the daughter’s unemancipated status is contingent on the daughter’s full-time status as a college student.  Should the daughter not be able or willing to produce specific documents that demonstrate full-time enrollment, then she should be emancipated accordingly.
Keep in mind that most matters in family law like the cases mentioned here are very fact-sensitive. 


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