Child Support Is One Thing, but Adult Support Must End

by Giovanni
(Atlantic County, NJ)

The law in New Jersey that requires only divorcing and non-custodial parents to pay adult support and pay higher education costs for their adult children is unconstitutional. The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children?s education as they deemed fit.
In New Jersey, the Legislature and our courts have long recognized a child's (a young adult?s) need for higher education and that this need is a proper consideration in determining a parent's child (adult?s) support oblation. Writing for the Court in Newburgh, Justice Pollock set forth a non-exhaustive list of twelve factors a court should consider in evaluating a claim for contribution toward the cost of higher education. See Newburgh v. Arrigo, 88 N.J. 529 (1982). ?
? The enumerated factors are as follows:
(1) whether the parent, if still living with the child, would have contributed?toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child (adult).

In the aftermath of the Newburgh Decision, the Legislature essentially approved ?those criteria?s when amending the support statute, N.J.S.A. 2A:34-23(a). Compare N.J.S.A. 2A:34-23(a) (listing factors to consider in determining support) with Newburgh, supra, 88 N.J. at 545, 443 A.2d 1031 (listing factors to?consider in determining payment of education expenses). Kiken v. Kiken, ?149 N.J. 441, 449, 694 A.2d 557 (1997). Thus, a trial court should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child's educational expenses.
The New Jersey Law as it is applied to both statutory and case law, forces a burden upon one class of citizens---divorced, separated parents and non-custodial parents---that cannot in like circumstances be imposed upon married parents residing together flunks the constitutional test. It places citizens into different classes based on a criterion wholly unrelated to the statutory or case law objective, which is to assure that a college student?s need for financial support from parents is fulfilled.
The plight of an adult child of divorced parents, attending
college and in need of parental support, is in no way different from the plight of an adult child of married parents, also attending college and in need of parental support. Young adults who need parental support for college and whose parents are divorced are not more needy, simply because their parents are divorced, in contrast to adult children in like circumstances whose parents happen to be married.

The young adults in the same situation whose parents are married are not less needy, simply because their parents are married. Need is need; it should not be contingent on the marital status of the needy students parents. By limiting its application to only one class of parents and young adults attending college, based not on the financial need of the adult student alone but also on the marital status of the adult students parents, New Jersey statutory and case law establishes distinctions that are wholly unrelated to the legitimate state interest that the law seeks to advance.

The New Jersey Family Court system imposes a legal obligat-
ion on certain class of parents of college age young adults in need of support while effectively granting an immunity from such liability to intact married families of college age young adults equally in need of support, based simply on the marital status of the parents, irrespective of the actual financial needs of the student or the financial abilities of the parents. Put simply, that just doesn?t make sense. New Jersey Law egregiously placing different burdens and benefits placed on persons similarly situated violates the guarantees of equal protection. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434 (4,5) (1981), South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S. Ct. 1180 (1999), Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620 (1996).

A Pennsylvania Supreme Court struck down a similar provision mandating post-majority support as a violation of the Constitution?s Equal Protection Clause. It reasoned that since married parents do not have to support their adult children,( as with intact families in New Jersey) it was discriminatory to force divorced parents to do so. See Curtis v. Kline, 666 A.2d 265 (Pa. 1995).

The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The United States Supreme Court has long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests."
The liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their children -- is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court. In Meyer v. Nebraska, 262 U.S. 390 (1923), the Court held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." In New Jersey however, this right only applies to intact families in which they can not be forced to pay for their adult children higher educational expenses.

A few years later, in Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Court again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." The Court explained in Pierce that "the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."
In subsequent cases also, the Court have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972) ("It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'"); Wisconsin v. Yoder, 406 U.S. 205(1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition".)

In light of this extensive precedent, there can be no doubt that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children?s education as they deemed fit. I respectfully submit that since married parents can not be forced to support their adult children with higher education and adult support, it is discriminatory and unconstitutional to force divorced parents or noncustodial parents to do so. In this State, upon attaining the age of 18, you are considered legally an adult. Adult support must end as well as forcing divorced and non-custodial parents to pay for higher education.

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