39 Comments

1. 

   James Hannah on August 27, 2010 at 5:57 pm

   I have just been informed by a practicing lawyer in SC that SC no longer requires parents, divorced or not, to pay their children’s college expenses. Is this correct?

   Please advise.

   James Hannah

2. 

   Giovanni on December 19, 2010 at 1:04 pm

   The law in New Jersey that requires only divorcing and non-custodial parents to pay adult child support and pay higher education costs for their adult children is unconstitutional.

   NEW JERSEY LAW FOR ADULT CHILD SUPPORT & HIGHER EDUCATION
   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 adult child support & higher education obligation. 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)(5). Compare N.J.S.A. 2A:34-23(a)(5) (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)(5) 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 Legislator and State Supreme Court overlooked the constitutional mandate that forbids family liberty may not be interfered with, under the guise of protecting the public interest and that parents have a fundamental right to control the education of their children. It is true that the law in question is designed to promote the highest good and public interest, but is does not make this law constitutional.

   THE NEW JERSEY & FEDERAL CONSTITUION SHOULD
   PROTECT AGAINST AN INJUSTICE THAT WOULD
   LEAD TO UNEQUAL TREATMENT

   Article I, Paragraph 1 of the New Jersey Constitution sets forth the first principles of our governmental charter – that every person possesses the “unalienable rights” to enjoy life, liberty, and property, and to pursue happiness. The Equal Protection clause of Federal Constitution provide that no person shall be denied the equal protection of the laws. U.S. Const. amend. XIV, § 1. Although our State Constitution nowhere expressly states that every person shall be entitled to the equal protection of the laws, the New Jersey Supreme Court has construed the expansive language of Article I, Paragraph 1 to embrace that fundamental guarantee. Sojourner A. v. N.J. Dep’t of Human Servs., 177 N.J. 318, 332 (2003); Greenberg v. Kimmelman 99 N.J. 552, 567-68 (1985). The first paragraph to our State Constitution “protect[s] against injustice and against the unequal treatment of those who should be treated alike.” Greenberg, supra, 99 N.J. at 568.

   When a statute is challenged on the ground that it does not
   apply evenhandedly to similarly situated people, our equal protection jurisprudence requires that the legislation, in distinguishing between two classes of people, bear a substantial
   relationship to a legitimate governmental purpose. Caviglia v. Royal Tours of Am., 178 N.J. 460, 472-73 (2004); Barone v. Dep’t
   of Human Servs., 107 N.J. 355, 368 (1987). The test that New Jersey Courts have applied to equal protection claims involves the weighing of three factors: the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction. Greenberg, supra, 99 N.J. at 567; Robinson v. Cahill, 62 N.J. 473, 491-92, cert. denied, 414 U.S. 976, 94 S. Ct. 292, 38 L.Ed. 2d 219 (1973). The test is a flexible one, measuring the importance of the right against the need for the governmental restriction. See Sojourner A., supra, 177 N.J. at 333. Under that approach, each claim is examined “on a continuum that reflects the nature of the burdened right and the importance of the governmental restriction.” Ibid. Accordingly, “the more personal the right, the greater the public need must be to justify governmental interference with the exercise of that right.” George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 29 (1994); see also Taxpayers Ass’n of Weymouth Twp. v. Weymouth Twp., 80 N.J. 6, 43 (1976), cert. denied, 430 U.S. 977,97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977). Unless the public need justifies statutorily limiting the exercise of a claimed right, the State’s action is deemed arbitrary. See Robinson, supra, 62 N.J. at 491-92.

   The New Jersey equal protection analysis also differs from the more rigid, three-tiered federal equal protection methodology. When a statute is challenged under the Fourteenth Amendment’s Equal Protection Clause, one of three tiers of review applies — strict scrutiny, intermediate scrutiny, or rational basis –depending on whether a fundamental right, protected class, or some other protected interest is in question. Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 1914, 100 L. Ed. 2d 465, 471 (1988). All classifications must at a minimum survive rational basis review, the lowest tier.

   DEFINITIONS

   EQUAL PROTECTION CLAUSE: Portion of the Fourteenth Amendment to the U.S. Constitution that prohibits discrimination by state government institutions. The clause grants all people “equal protection of the laws,” which means that the states must apply the law equally and cannot give preference to one person or class of persons over another.

   SOURCE: http://www.lectlaw.com/def/e027.htm
   ADULT: An adult is a person who has attained the age of majority. The age of majority is the legally defined age at which a person is considered an adult, with all the attendant rights and responsibilities of adulthood. The age of majority is defined by state laws, which vary by state, but is 18 in most states. Rights acquired upon reaching the age of majority include the rights to vote and consent to marriage, among
   others. However, the right to vote is 18 nationwide under the 26th Amendment to the Constitution, regardless of the state laws.
   SOURCE: http://definitions.uslegal.com/a/adult/
   U.S. Constitution – Amendment 26
   1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
   2. The Congress shall have power to enforce this article by appropriate legislation.

   POINT ONE

   WHY N.J.S.A. 2A:34-23(a)(5) & NEW JERSEY COMMON LAW REQUIRING
   ONLY DIVORCING & NONCUSTODIAL PARENTS TO PAY ADULT CHILD SUPPORT
   & HIGHER EDUCATION COSTS FOR THEIR ADULT CHILDREN
   IS UNCONSTITUTIONAL.

   In cases where there is an intact family, with parents married and residing together, the statute and case law has no application. In such cases, the parents have no legal obligation to provide support for adult children, no obligation to contribute to college education and adult children have no remedy for compelling such support. In essence, N.J.S.A. 2A:34-23(a)(5) and case law permits a burden to be imposed upon one class of citizens—divorced or separated parents—that cannot in like circumstances be imposed upon married parents residing together. Parents in this latter class are thus immune from such legal liability. Likewise, N.J.S.A. 2A:34-23(a)(5) and case law creates a privilege for one class of citizens—adult children of divorced or separated parents—that is not granted to children whose parents are married and residing together. In consequence, by establishing distinctions based upon the marital status of the parent, N.J.S.A. 2A:34-23(a)(5) and case law violates the equal protection clauses of both New Jersey and United States Constitutions.

   It has been said that rights cannot exist merely in theory or on paper; they must exist in reality or they are meaningless. See Cooper v. Nutley Sun Printing Co., 36 N.J. 189, 197 (1961) (New Jersey Constitution does not embody rights in a vacuum, existing only on paper. And where rights are not equal in application or practice, then the promise and guarantee of equal rights remains unfulfilled. It is a commendable practice of recognizing when “one of our decisions has consequences that were not fully anticipated.” Pinto v. Spectrum Chems. & Lab. Prods., 200 N.J. 580, 598 (2010). Logically, that axiom is equally applicable when one of its decisions has not had the remedial consequences that the Court anticipated would result. Such is the case here.

   A state’s interest in forcing only divorced and noncustodial parents to pay adult child support and secondary education, however highly ranked, is not totally free from a balancing process when it impinges on other fundamental rights and interests. This type of law that exists in New Jersey must be struck down — even if it is a good law. Moreover, there is no dispute that it does not apply evenhandedly to similarly situated people. Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20, 37, 42 S. Ct. 449, 66 L. Ed. 817 (1922) (reviewing court must strike down unconstitutional law even though that law is “designed to promote the highest good.” The good sought in this unconstitutional law is an insidious feature, because it leads citizens, courts and legislators of good purpose to promote it, without thought of the serious breach it will make in the ark of our covenant, or the harm which will come from breaking down recognized standards. The law on its face egregiously places different burdens and benefits placed on persons similarly situated also violate 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). This law establishes distinctions that are wholly unrelated to the legitimate state interest that the law seeks to advance. The equal protection provision in the New Jersey Constitution “prohibits the State of New Jersey from adopting statutory classifications that treat similarly situated people differently.” (Sanchez v. Dep’t of Human Servs., 314 N.J. Super. 11, 30 (App. Div. 1998)).

   As I see it, the state’s interest in having a public policy and social goal for family courts to encourage higher education does not apply evenhandedly to all New Jersey Parents. It only applies to those parents who are getting divorced or never married. The law is discretionary and is routinely implemented upon a showing of need for parental assistance on the part of the individual young adult attending college. The law is clear, when no harm threatens an adult child’s welfare, the State lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit. It is fundamentally unfair the way the law is applied in this State. The State no compelling interest in ordering a select class of parents to pay adult child support and forcing college contribution regardless of the marital status of parents. Parental rights consist of fundamental liberty and privacy interest, which the State can only infringe upon after finding a child is in severe harm, or severe danger of being harmed.

   The objective of the law is to provide a legal remedy for compelling parents to support their adult children who attend college and who are in need of such support (thereby advancing the state’s interest in having a well-educated populace), class distinctions restricting or limiting the law application must have a rational relationship to the law’s objective. 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. Likewise, 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. The essence of Article I, Paragraph 1 of the New Jersey Constitution, as well as the Fourteenth Amendment, is simple: like citizens in like circumstances are to be treated equally in the eyes of the law. The present law violates this fundamental constitutional principle. The law is unconstitutional and the court should so recognize.

   The best interest of the child rule is consistently invoked by American courts when dealing with children in custody disputes because courts have an overriding interest in protecting a minor child’s welfare. Generally, this rule is applied with the best of intentions concerning minor children. However, the best interest of an adult child rule should never be considered when dealing with adult child support and post-secondary education payments concerning adult children. By ordering divorcing and noncustodial parents to support their adult children, the New Jersey Courts continue to violate the constitutional rights of those parents. Treating all New Jersey parents similarly situated should be the goal of our legal system, but it isn’t in New Jersey. As noted below, the New Hampshire legislature recognized the inequality of these judicial orders and recently amended the law.

   SUPPORTING AUTHORITY
   A recent South Carolina Supreme Court struck down a similar provision mandating post-majority support as a violation of the Constitution’s Equal Protection Clause after 30 years of being the law of the land. It reasoned that since married parents do not have to support their adult children, it was discriminatory to force divorced parents to do so. See Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010), see also Curtis v. Kline, 666 A.2d 265 (Pa. 1995). Grapin v. Grapin, 450 So.2d 853 (Fla. 1984). The Florida Supreme Court found based on equal protection grounds, that is was fundamentally unfair and a denial of equal protection under the law to impose the duty of supporting a post-majority child on divorced parents but not on the parents who are married to each other. In Ohio, the law regarding payment of post-secondary education expenses is well settled and set forth in Bardes v. Todd 746 N.E.2d 229, 235 (Ohio App. 1st Dist. 2000).In Bardes, the court restated the rule regarding payment of post-secondary educational expenses as follows: without a specific agreement of the parties and the subsequent adoption of the agreement by a trial court, a judge generally has no authority to issue orders setting aside money for future college expenses of a minor child. However, this rule only applies if the money would be used after the child reaches the age of majority. In addition, the Bardes court stated that no case law supported a holding that attending a college of one’s choice is a fundamental right guaranteed by the federal Constitution, even for the most gifted of children.
   SUPPORTING LEGLISLATIVE ACTION
   In January of 2003, the New Hampshire legislature introduced a bill proposing to change the existing law regarding post-secondary education orders. The previous statute, which applied before the amendment was introduced, granted superior courts the authority to order divorced parents to contribute to their child’s post-secondary educational expenses. This new bill was drafted to amend RSA § 458:17 by inserting the following provision: “No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school.” The purpose of this provision, according to the bill’s sponsor, was to remove a trial judge’s discretion when ordering divorced parents to contribute to their adult child’s college expenses. Both the Senate and the House of Representatives voted in favor of the bill, and on January 1, 2004, the new child support provision took effect. The new law is codified as RSA § 458:17(XI-a).
   In February, 2010 the Virginia legislators killed a bill to extend child support to adult college students. The bills would have required a non-custodial parent to make payments to the other parent while their adult child is attending college. A limited number of states have such laws, but legislators in Virginia voted the bill down after receiving an avalanche of angry e-mails and phone calls from their constituents opposing the bill. The bill was killed by the House of Delegates Courts of Justice Committee in an voice vote on January 22 2010 to strike the bill from the docket. It was killed this legislative session by the Senate Courts of Justice Committee, which voted 13-to-1 to shelve the bill indefinitely. On February 1, 2010 only Senator Roscoe Reynolds (D-Martinsville) voted to keep the bill alive.
   POINT TWO

   THE PUBLIC POLICY AND SOCIAL GOAL OF THE NEW JERSEY
   FAMILY COURTS TO ENCOURAGE HIGHER EDUCATION OFFENDS
   THE FUNDAMMENTAL RIGHTS OF A SELECT CLASS OF PARENTS

   It is now well established that family integrity is a fundamental right that the State my not abridge through it’s public policy. The Due Process Clause of the Fourteenth Amendment protects fundamental liberties such as family integrity. Here, the State’s “Public Policy On Forcing Only A Select Class of Parents To Pay Adult Child Support And College Contribution” violate due process because they (i) result in the deprivation of family rights without requiring the government to satisfy any minimum threshold to justify such an obligation to only a select class of parents, and (ii) do not provide procedural protections to ensure that parents’ rights are not trammeled unlawfully and that state officials operate within the law. The Public Policy in question vest state officials with unfettered discretion to infringe upon a selected class of parents’ fundamental family rights.

   A. Family Integrity Is A Fundamental Right.

   The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” As this Court has explained, the Due Process Clause protects the fundamental liberties of private citizens from undue interference by the government. “[T]he Due Process Clause, like its forebear in the Magna Carta, was “‘intended to secure the individual from the arbitrary exercise of the powers of government.’””Daniels v. Williams, 474 U.S. 327, 331 (1986) (internal citations omitted). Due process “requir[es] the government to follow appropriate procedures when its agents decide to ‘deprive any person of life, liberty, or property.’”Id.

   The family lies at the heart of civilization, and protecting its privacy and integrity from undue state interference is essential to the maintenance of a free society. Although “the Due Process Clause affords only those protections ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’” Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)), the Court has “‘long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’” Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (quoting Cleveland Bd. of Educ.v. LaFleur, 414 U.S. 632, 639-40 (1974)).Accord Loving v. Virginia, 388 U.S. 1, 7 (1967), andSkinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). In Moore, the Court explained:

   the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural

   431 U.S. at 503-04 (footnote omitted). See also Michael H., 491 U.S. at 123 (noting the “historic respect – indeed, sanctity . . . traditionally accorded to the relationships that develop within the unitary family.”).
   In Meyer v. Nebraska, 262 U.S. 390 (1923) the Court determined that liberty “denotes not merely freedom from bodily restraint but also the right of the individual to . . . establish a home and bring up children . . . and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 262 U.S. 390, 399 (1923). Accord Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). As a plurality of the Court explained, the “liberty interest at issue . . . – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel, 530 U.S. at 65 (O’Connor, J.). Similarly, in Meyer, the Court explained that “this [family] liberty may not be interfered with, under the guise of protecting the public interest” and held that parents have a fundamental right to control the education of their children. 262 U.S. at 399-400. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents. . . . [for which reason this Court has] respected the private realm of family life which the state cannot enter.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (internal citation omitted). Therefore “it cannot now be doubted 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.”Troxel, 530 U.S. at 66 (plurality opinion). ”). See Watkins v. Nelson, 163 N.J. 235, 245 (2000); V.C., supra, 163 N.J. at 217-18; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Griswold v Connecticut 381 US 479 (1965) The 4th and 5th Amendments were described as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” The Court referred to the 4th Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” Reaffirming the principles set forth in Pierce v. Society of Sisters and Meyers v Nebraska. See Moriarty v. Bradt, 177 N.J. 84, (2003), discussing in detail that childrearing autonomy is rooted in the right to privacy.
   The public policy and social goal of New Jersey Family Courts to encourage higher education offends the fundamental rights of a select class of parents to control their child’s education. A Florida appellate court in 1978 declined to order a divorced parent to pay for his adult emancipated daughter’s undergraduate college tuition:
   We agree that a trial court may not order post-majority support simply because the child is in college and the divorced parent can afford to pay. [citations omitted]
   While most parents willingly assist their adult children in obtaining a higher education that is increasingly necessary in today’s fast changing world, any duty to do so is a moral rather than a legal one. Parents who remain married while their children attend college may continue supporting their children even beyond age twenty-one, but such support may be conditional or may be withdrawn at any time, and no one may bring an action to enforce continued payments. It would be fundamentally unfair for courts to enforce these moral obligations of support only against divorced parents while other parents may do as they choose. Grapin v. Grapin, 450 So.2d 853, 854 (Fla. 1984). Hence, this Court followed the constitutional mandate that forbids interference with family liberty, and that parents have a fundamental right to control the education of their adult children. Here, the State of New Jersey lacks a compelling interest in second-guessing a select class of parents’ decision on whether or not to contribute toward an adult child’s private college education.
   Indeed the relationship between a minor child and school authorities is not voluntary one in this State, but is compelled by law; a minor child must attend school and is subject to school rules and disciplines; in turn school authorities are obligated to take reasonable precautions for his safety and well-being. Jackson v. Hankinson, 51 N.J. 230, 238 A.2d 685 (1968). N.J.S.A.18A:38-25 provides that every parent, guardian or other person having custody and control of a child between the ages of six and 16 years shall cause such child regularly to attend the public schools of the district or a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments or to receive equivalent instruction elsewhere than at school. The law is applied evenhandedly to all New Jersey parents, not just a select class of parents.

   A parent’s legal obligation to educate their child in New Jersey, terminates upon attaining the age of 16. In New Jersey, any parent lacks any standing whatsoever to force their child to finish high school upon attaining the age of 16. It would be fundamentally unfair for the State to continue to inject itself into the private realm of only divorcing and noncustodial parents, granting immunity to intake families and questioning the ability of a select class of parents to make the best decisions concerning private college educational choices of that parent’s adult children.

   B. Family Integrity May Not Be Abridged
   Without Due Process.

   Due process requires that the State provide adequate procedures and safeguards against the erroneous or arbitrary infringement of protected liberties. Although the right of family and childrearing is fundamental, the Court has recognized that “the rights of parenthood,” like other rights, are not “beyond limitation.” Prince, 321 U.S. at 166. See Stanley v. Illinois, 405 U.S. 645, 649 (1972) (recognizing the “State’s right – indeed, duty – to protect minor children through a judicial determination of their interests in a neglect proceeding.”)

   The State’s ability to interfere with family integrity is likewise constrained by the Constitution:

   [S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.

   Troxel, 530 U.S. at 68-69 (plurality opinion).

   The government may not abridge family integrity without first meeting the high threshold imposed by the Constitution. “[W]hen the government intrudes on choices concerning family living arrangements, the Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. ”Moore, 431 U.S. at 499. In Stanley, the Court cautioned that the interest of “a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” 405 U.S. at 651. Where the “issue at stake is the dismemberment of [a] family,” the convenience to a government of a presumption against parental fitness of unwed fathers is “insufficient to justify refusing a father a hearing” prior to deprivation of custody. Id. at 658. Thus:

   The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents. . . . Even where blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

   Santoskyv. Kramer, 455 U.S. 745, 753 (1982).

   It is true that a State has a legitimate interest in the creation and dissolution of the marriage contract, see Sosna v. Iowa, 419 U.S. 393, 404 (1975); Maynard v. Hill, 125 U.S. 190, 205 (1888), but the family has a privacy interest in the upbringing and education of children and the intimacies of the marital relationship which is protected by the Constitution against undue state interference, (which clearly exists in New Jersey against a select class of parents, while granting immunity to intact families). In 2000, the Supreme Court cited a long train of previous cases which showed that the right of parents to direct the education and upbringing of their children is a fundamental right. The following passage, taken from Troxel v. Granville, highlights the rich history of this fundamental right:
   In subsequent cases also, we 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, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (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”); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ( “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720, 117 S.Ct. 2258 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted 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. (emphasis added)
   Because fundamental rights are so important to our freedom as Americans, the government must meet a heightened burden of proof in order to restrict those rights. In legal terms, the government’s case begins with a positive demonstration – they must prove that there is a government interest in restricting the right, and that the government has a specific interest in restricting the right of the particular parents whose actions are being challenged. In early 2006, the U.S. Supreme Court used this very language when talking about violations of religious liberty. According to the Court, the government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’–the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro Espirito Beneficiente Uniao do Vegetal, 548 U.S. 418, 430-431 (2006). The text of this proposed parental rights amendment merely takes this well-established principle of law, and applies it explicitly to the fundamental right of parents.
   In 1972, the U.S. Supreme Court held that in order for the state of Wisconsin to override the rights of Amish parents, the government had to show that it had a compelling interest in requiring students to stay in school until age 16. Speaking of the right of the parents, the Court said that “the essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (emphasis added).
   The Supreme Court has required the government to follow this standard whenever there is a violation of a fundamental right. Prominent examples of this are cases that deal with racial discrimination (see Adarand v. Pena, 515 U.S. 200, 227 (1995): “All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. . . . Such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests”), restrictions on free speech (see Widmar v. Vincent, 254 U.S. 263, 269-270 (1982): Whenever discriminating against speech on the basis of its content, the government “must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”), and invidious discrimination against religion (see Church of the Lukumi Babalu Aye, Inc., v. Hialeah, 508 U.S. 520, 546 (1993): “To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” In all these cases, the government must prove that it has a compelling interest, before the fundamental freedom at stake can be limited.
   It is the parents of adult children who have an “important” right concerning the question of whether or not they contribute to the cost of private college education for their adult children and not the State of New Jersey. Moreover, these constitutional rights derive from both privacy rights and liberty interests which have been established. To have laws in New Jersey compelling parents of a selected class to pay for adult child support & secondary higher education is unconstitutional. The decision of parents as to whether or not the adult children should go to college, and who shall pay for those educational expenses are matters of right that are purely personal, private and moral to the parents and to the adult child. While some parents are willingly assist their adult children in obtaining a higher education that is increasingly necessary in today’s fast changing world, any duty to do so is personal, private and moral rather than a legal one. Parents who remain married while their children attend college may continue supporting their children even beyond age twenty-one, but such support may be conditional or may be withdrawn at any time, and no one may bring an action to enforce continued payments. It would be fundamentally unfair for New Jersey Courts to continue to enforce these personal, private and moral obligations of support only against divorced and noncustodial parents while other parents may do as they choose.

   ADDITIONAL REFERENCES

   See S. J. RES. 16 111 Congress, Proposing an amendment to the Constitution of the United States relative to parental rights.http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:sj16is.txt.pdf See also See H. J. RES. 42, Proposing an amendment to the Constitution of the United States relative to parental rights.
   http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:hj42ih.txt.pdf

   In March of 1997, Senator Gerald Cardinale of New Jersey introduced Senate Concurrent Resolution (SCR) 114 proposing a parental rights amendment to the New Jersey Constitution. It
   reads:

   “Amend Article I by adding a new paragraph 23, as follows:
   23. (a) The right of parents to direct the upbringing and education of their children shall not be infringed.
   (b) The Legislature shall have the power to define and enforce, by appropriate legislation, the provisions of the paragraph.”

   That there can be no doubt as to the source of parental rights proposals, the last paragraph of New Jersey’s proposal states:

   “The ‘Parental Rights Amendment’ has been introduced by legislators in at least 29 states to date. Major pro-family organizations are working for the adoption of the amendment across the nation, including the Family Research Council, Focus on the Family, the Christian Coalition, Concerned Women for America, Of the People, and the Home School Legal Defense Association. This amendment complements federal parental rights legislation which has been introduced by Representative Steve Largent of Oklahoma and Senator Charles Grassley of Iowa.” (Senate Concurrent Resolution No. 114, State of New Jersey, Introduced March 10, 1997 by Senator Cardinale.)

   CONCLUSION

   The degree to which any parents wishes to support, or discourage private post majority educational opportunities of adult children is encompassed within the management of children concept. The right of parents to direct the upbringing and education of their children is a fundamental right protected by the Constitutions of the United States and the State of New Jersey. The interests of children and adult children are best served when parents are free to make childrearing decisions about education, religion, and other areas of a child’s life without state interference. So long as a parent adequately cares for his or her children, there is no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. Troxel v. Granville. The State recognizes that when a child turns 18, the child is considered an adult. The adult child has the ability to legally work, participate in contracts, vote, marry, give sexual consent, join the military, apply for scholarships, student loans and repay such loans. As such, the State of New Jersey has no legitimate interest in interfering with a select class of parent’s decision concerning an adult child’s private higher education. The Court has an obligation to uphold the State and Federal Constitution and must do so despite the good intentions with the current law. The State’s only interest with respect to a child’s education terminates upon a child turning 16 years of age, see N.J.S.A.18A:38-25.

3. 

   Unfair on January 5, 2011 at 11:16 am

   Hi, I am the current wife of a man who pays child support and alimony to his ex-wife in NJ.

   I am so glad to see that my thinking about forcing divorced people to pay for college, but not married couples, is completely unfair.

   I am also very pleased to see that Giovanni put so much effort into this subject and that he took the time to write everything in “lawyer-speak”.

   Can anyone tell me the following things regarding NJ:

   1. How close in NJ to throwing out the college payment requirement? Is there an end in sight? Is there anyone in NJ championing this change? Perhaps a group of people? The ACLU??? Anyone?

   2. In our case, the ex-wife cannot even get the kids to attend high school and middle school regularly. Given that NJ has considered a college education a NECESSITY since 1971 for ‘disadvantaged’ divorced children, what do you think the chances are that we can get the mother ruled UNFIT? Because, surely, if COLLEGE is a NECESSITY, then having no HIGH SCHOOL diploma is like trying to live without AIR, right?

   3. Also, I’ve read horror stories on the internet about kids who drop out of college and when the non-custodial parent goes to court to have the insanity (read: child support and college tuition) stopped, the judge will say, “Oh, he’s only taking a break for 6 months…you still have to pay because he’s going back to school ‘soon’. ” Are there any concrete time limits on how long an “adult child” (I love a good oxymoron…) can ‘drop out’ and actually have the courts consider them dropped out in NJ? My fear is this: Although my husband’s kids have strong probabilities of NOT graduating high school, I don’t think it will stop them from going to ‘beauty school’ (or the like) and then dropping out just to milk more money out of him. I understand that they could play this horrible game with him until their 27th birthday in NJ!!!!

   4. Also, when does NJ really consider an ‘adult-child’ ‘financially independent’? What guidelines are used? Is it based on ‘the style the mother is accustomed to’? Or what? Is it based on the kid being able to pay for a slick new apartment or a reasonable abode?

   COULD NJ GET ANY MORE VAGUE?

   5. As I mentioned, I am the wife of a ‘non-custodial’ parent…talk about taxation without representation…I am wondering if I can file something in NJ about the unconstitutionality of this absurd ‘college pay’ requirement? Please tell me how we can get this unfair law changed!

   Thank you.

4. 

   Live Free or Die on March 7, 2011 at 3:54 pm

   RE: New Hampshire

   New Hampshire Revised Statutes Annotated
   TITLE XLIII
   DOMESTIC RELATIONS
   CHAPTER 461-A
   PARENTAL RIGHTS AND RESPONSIBILITIES
   Section 461-A:14V

   “No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school.”

5. 

   Vicki on April 19, 2011 at 4:07 pm

   I live in Georgia. My 18 year old son is about to head off to college. His father, who has only paid $239.00 a month in child support for the past 16 years, will NOT help with his expenses. Can and how do we get him to pay?

6. 

   admin on April 20, 2011 at 1:00 pm

   Vicki – you can’t. Not only is your son no longer a child – as an adult, neither parent is under any obligation to take care of anything associated with his day-to-day “upkeep.” Now, it goes without saying that parents normally want to do whatever they can to assist their children for as long as is prudent (and, my beliefs are – the child earns that assistance).

   However, married parents have no obligation to fund their children’s higher educations. Nor should it be so for divorced couples.

   Neither you nor your husband has any obligation to provide assistance with your son’s higher education, no matter how much you wish it was possible.

7. 

   Rick on May 4, 2011 at 8:53 am

   What is the latest for the state of New York with and with out respect to private and public schools

8. 

   admin on May 4, 2011 at 9:44 am

   Rick – if you’re not talking about higher education, New York is probably like most states in that it’s up to the individual judge in each individual case. Whatever the end ruling is, in many cases each parent is required to pay the tuition usually in proportion to their income (if the ruling lands on the side of private schooling).

   Of course, then they’ll roll that figure into your child support order to maximize their federal matching funds.

9. 

   Rick on May 5, 2011 at 10:19 am

   what if the school of choice is private and was not coordinated with me and in fact is stated that in my child support arrangements portion of the divorce where it states only public wil be considered and only after both parent agree. My problem is that I have been left out of the school selection, planning and all previous choices in our childs life. Either way, all I got was a call and was told by the child’s mother ” Hey she is going to x and it is going to cost xxx. This is crazy if something like this would actually fly

10. 

    Scott on June 27, 2011 at 12:50 pm

    Hello,

    I live in California. My son is 17 years old, and I lost custody 3 years ago. I know that my ex-wife wants me to pay for some of his college expenses. My income is very low.

    How can I best prepare my case asking the judge to deny this request?
    How can I find California case law in support of my position ?

    Here are the relevant portions of California family law code that I could find.

    3900. Subject to this division, the father and mother of a minor
    child have an equal responsibility to support their child in the
    manner suitable to the child’s circumstances.

    3901. (a) The duty of support imposed by Section 3900 continues as
    to an unmarried child who has attained the age of 18 years, is a
    full-time high school student, and who is not self-supporting, until
    the time the child completes the 12th grade or attains the age of 19
    years, whichever occurs first.
    (b) Nothing in this section limits a parent’s ability to agree to
    provide additional support or the court’s power to inquire whether an
    agreement to provide additional support has been made.

    3902. The court may direct that an allowance be made to the parent
    of a child for whom support may be ordered out of the child’s
    property for the child’s past or future support, on conditions that
    are proper, if the direction is for the child’s benefit.

    3910. (a) The father and mother have an equal responsibility to
    maintain, to the extent of their ability, a child of whatever age who
    is incapacitated from earning a living and without sufficient means.
    (b) Nothing in this section limits the duty of support under
    Sections 3900 and 3901.

    thank you,

    Scott

11. 

    Connie on July 3, 2011 at 9:12 pm

    I am engaged to a man who does not have custody of his 3 children due to the fact that they are 20, 22, and the other is married. We live in WV along with his son of 22 who came to live with us a year ago. We have him enrolled in a University and he did very well. He had flunked out of the school he was attending in Indiana. The daughter had gone 2 semesters at an Ivy Tech School and we just now found out that she failed BOTH semesters. We were never informed of this. Now she wants to go to New York to a Cosmotology school at a cost of roughly $41,000 for a 6 month course. His son’s admission to the university AND his books, vehicle, money, etc. were paid soley by myself and his mother never offered a dime. Now she is insisting we pay for 66% of her cosmotology classes along with room, books, misc. things needed for classes, transportation, and spending money. Is this a law in Indiana that says the non-custodial parent has to pay for a college degree esp. when they can’t afford it? The daughter hasn’t had ANY relationship with her father since at least 2007. She won’t answer text messages, answer his calls, or even speak or look at him when he is around.

    Connie

12. 

    admin on July 3, 2011 at 9:26 pm

    Connie – Indiana IS one of those states, but there are a host of requirements which are detailed in the Indiana Child Support Statutes. I can tell you that requiring a certain GPA be maintained is one of those requirements (generally). As always, it’s up to the “discretion” of the judge, which is always the proverbial “crap shoot” in family court.

    Further, I’m not entirely convinced that a 6-month “cosmetology” course to the tune of $41,000 necessarily would meet the muster of official “post-secondary education.” Her inability to do anything but fail should not be lost on the court, but as “they” say – anything can happen.

13. 

    Richard Trigg on July 22, 2011 at 8:15 pm

    I have read the divorce and child support statutes for Missouri but am still confused about my legal requirements to contribute to my daughter’s college expenses. She will be 21 on the 30th of this month and my divorce decree does not mention college obligations. My ex wife is pressing me for half the college expense. This late in the game, can she force college expenses on me?. I told my daughter that I would voluntarily give her $300.00 per month to help out and she works quite a bit and earns 12 to 15 K a year at part time jobs while attending university. I have an income of only $1600.00 per month which is my SS and a small pension. Richard Trigg

14. 

    Michelle on July 25, 2011 at 2:28 pm

    I am the wife of a non-custodial parent – my husband has been divorced for 10+ years now. He has been paying a certain amount for child support for 2 children (in Missouri ) and when one child moved out of the custodial home and got engaged, (the child had tried college for a year but failed a good number of classes and decided it was not for them a year prior to this) my husband was told the amount of his custody payments would not change because they were a “standing order”. Is this normal? Nothing in the chilld support agreement papers say anything about a standing order for child support.
    In addition, his second child is 18, and is just starting college which means he will be paying for half of college, including room and board (of which he had no input to the decision and still hasn’t been told what the final cost will be and when payments are needed, nor has he seen the schedule of classes the child has enrolled for, etc. and the start of the semester is only 3 weeks away )along with the full “standing order ” of child support. If the child is not at home and he must support the child’s living expenses at school, why does he also still have to pay child support to his ex-wife for an ADULT child? I don’t understand why he’s required to now pay for “2 homes” for the child in addition to college expenses. We don’t have 2 homes… Has this been fought in Missouri and if so has any progress been made to change the laws past majority or at least balance this situation out between custodial and non-custodial parents? Essentially by the courts, both parents will have to pay half of college expenses, but in reality my husband will pay it all and more with the continuation of child support payments in addition to college expense payments.

15. 

    Beth on September 26, 2011 at 12:39 pm

    My husband paid (half) of his daughter exspeses to go to college based on an agreement through the court system. The child is now 24 years old- owns her own home and bought her own car. She has now decided to go back to college and get another degree. Are we legally liable to pay for this exspense AGAIN? When does it stop? Can she be 50 and we will be held liable ?

16. 

    Bonnie on October 13, 2011 at 2:28 pm

    I have a question. I live in Oregon, my daughter graduates from HS in June 2012. At this point she is getting SS
    for the past year from her Dad, since retired at age 65. So this replaced his child support payment last year.
    When she turns 18 or she graduates from HS, the SS payments stops. So does that mean when she graduates he will have to start paying child support again as long as she is in college, until she is 21 years old. Is he, also obligated to help with other college expensive besides the continued child support in Oregon?

17. 

    shawn on October 28, 2011 at 4:54 pm

    I was wondering the law in Indiana when it came to divorced parents and higher education and extra expenses like insurance, gas housing. If anyone knows that would be an awesome start? thank u

18. 

    EmancipateNJ on November 9, 2011 at 2:01 pm

    We are trying to get a movement together to pressure the NJ legislation to pass a law that allows for automatic emancipation at 18 years of age. No more “child” support or college expenses should be forced onto divorced, non-custodial parents as it is unconstitutional. Clearly there are other states that need to do the same.

    One of the problems for us is finding all the people in the state who are affected. Even online it is difficult to find information that explain to people why the actions of the family court systems are discriminatory. So thank you for the resources you have on this site.

    Do you have a page for activism on the site? I’m not seeing it but it would be a wonderful addition.

19. 

    Brett on December 7, 2011 at 2:40 pm

    As a related, but separate issue, can a non-custodial parent be compelled to fill out a FAFSA?
    I was 19 when my parents divorced, so neither had custody of me; but since I am under 25 I am not considered an independent student and must have both parents fill out a FAFSA. My father refuses to provide information for the FAFSA, as he is afraid my other will obtain it somehow. As a result, my school has cancelled my full tuition scholarship until he provides his FAFSA. He refuses to do so unless I transfer across the country to a school near him and live with him, and let him select my major and courses.
    I do not need any support from him (nor do I actually want any for obvious reasons), I just want him to file a FAFSA.
    Is there anything I can do about this? Or am I going to be forced to withdraw?

20. 

    Shouldn't pay! on December 11, 2011 at 1:44 pm

    Hi – My divorce decree states that the child must exhause all student loans before the mom and dad have to kick in any money. Further, it states that the mom, dad, and child were to agree on a school in the kid’s junior year of high school. I was never consulted or notified of anything. In fact, I have had no contact with my kid in over a year. The only way I knew he was attending school was because the irresponsible mother never helped the kid apply for studen loans! The kid is attending school out of state at out of state rates. The kid signed a financial agreement that all payments would be made – and, of course, none were. Now the kid is getting kicked out for non-payment, and brilliant mother thinks she’s coming after me to pay. This is in NJ. Since the divorce clearly states that the kid needed to obtain student loans, and I was not consulted about college, and the kid doesn’t even speak to me, is there a chance a judge could make me pay for this? The divorce order was signed over 3 years ago. Had we not divorced, he still would have had to get student loans for college as the funds just aren’t there for me to pay!

21. 

    Jaye Greene on December 11, 2011 at 8:43 pm

    My stepdaughter lives with her mother in WI. We live in WA state. The mother is requesting my husband help pay this childs college tuition. This is in spite of her being in contempt of court five times for visitation violations, refusing to put the child on the plane for court ordered visitations, and basically violating every point in the parenting plan. Can she get college tuition from my husband even though she has completely blocked access to his daughter (sending mail back etc) for over three years? The daughter has NOTHING to do with this man, not answering emails, phone calls etc. If he DOES have to pay, how long does he have to pay for?

22. 

    Lisa on December 17, 2011 at 5:21 pm

    We live in Illinois, so I understand that the non custodial parent can be forced to assist with college expenses. The original order stated that termination occurred on the 18th birthday or high school graduation, whichever came last. The child turned 18 and graduated high school, the assumption is that there is no more liability for the non custodial parent. If the child does decide to go to college, can the non custodial parent pursue assistance with costs, even though there was no mention of college in the original order?

    Thank you for your time and assistance.

23. 

    Jennifer on December 21, 2011 at 12:13 am

    I am a wife of a man who is being forced by the state of Illinois to pay for both of his girls college. We had no say so what so ever in where they go or anything, just here is the amount you are paying. When we asked if they could go to a community college for two years and then transfer…NO. We have fought many ugly battles over the years for just very basic things and it has became very clear very quickly that the mom will most always win…no questions asked..we don’t even want to know that your husband walked in on you and your boyfriends…but let’s make him pay for EVERYTHING. As a divorced person when we met I was shocked at the things that this court in this state has done. I guess I was lucky to divorce in a state that wasn’t so far behind the times. We will be taken back to court again in the month of Jan for contempt charges because his daughter has failed AGAIN to go and sign all the papers that are required of her at her school so that we can make payments. We have called the school as instructed and asked about payments and the lady we spoke to told us and I quote “we don’t give a rat’s ass what some court in Illinois ruled on….she is the one who is 100% responsible for her account and making sure that all papers are signed” This has been told to her and we get the deer in the head light look and then she goes and I guess tells mommy who then just waits for the date to come and go and then they start to kick her out and then mommy takes a draw from her line of credit (granted we applied but due to the battle axe taking us back to court so many times over the years that my husband has lost a couple jobs over it and it has ruined us and we can’t qualify to even get a loan for a loaf of bread) and comes in and saves the day and then calls her lawyer who then files papers on us for lack of payment. Can you tell we have played this game for awhile now? The way it stands now we have judgements that there is no way we can meet and it is costing us more in lawyers fees than we can ever pay off. Our two boys will be lucky if they get to go to a community college while their sisters get a full riide to a private college. We have the second girl graduating this May from high school and then we start all over. This is the one who partied her way through high school and had to do summer school but still SOMEHOW SOMEWAY got in to a…..you guessed it PRIVATE COLLEGE. Now she is not getting the grants and scholarships that the other one did for good grades but what does that matter when daddy is going to have to take care of it. She is even having a hard time finding the time to hunt and find these scholarships because that takes time away from friends and the boyfriend.

    Yes I am very bitter about it and I’m trying with all my might to not direct this at the girls because I know they are a product of their mother’s doing….but to see a court enable this kind of entitlement is almost more than we can take at times. Oh and I forgot to mention that the college told us that student loans were offered to said oldest daughter and she refused because…and again I quote “why do I need to be bogged down with all these loans when daddy can pay for it”

    With all of my ranting, I would love any advice or any help that anyone might have concerning IL and the county of Macon. We have been told that we have a good case for the 14th amendment but when it comes down to brass tacks it will probably cost just as much or even more by the time we are done as it would to just shut up and take the beatings and just pay. Thank you from a wife who is really trying to do the right thing, but losing hope very quickly.

24. 

    Giovanni on February 17, 2012 at 5:16 pm

    The Law on Post Majority Support is Unconstitutional

    THE LAW OF NECESSARY EDUCATION IS UNCONSTITUIONAL BECAUSE PARENTS HAVE A FUNDAMENTAL LIBERTY INTEREST IN THE CUSTODY, CARE, CONTROL AND MANAGEMENT OF THEIR CHILDREN UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

    The Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” Moore v. City of East Cleveland, 431 U.S. 494, 503-04 (1977) (plurality opinion). The Court has long recognized the fundamental right of natural parents to direct the upbringing of their children, especially when the state purports to know better. Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); Parham v. J.R., 442 U.S. 584, 608 (1979); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These cases uphold the time honored principle that Parents have a fundamental liberty interest in maintaining the care, custody, companionship and management of their children. The law on Necessary Education violates these constitutional principles.

    In Meyer, a German schoolteacher challenged his conviction for illegally teaching a foreign language to students. Meyer, 262 U.S. at 397. Meyer argued that the law unreasonably infringed on his liberty interest protected by the Fourteenth Amendment. Id. at 399. The Court embraced Meyer’s argument, explaining:

    While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes … the right of the individual … to marry, establish a home and bring up children …

    [The teacher’s] right to teach and the right of parents to engage him so to instruct their children, we think are within the liberty of the Amendment.

    Id. at 399-400.

    THE COURT MAY NOT INVOKE PARENS PATRIE POWER
    TO RESOLVE PRIVATE AND PRIVATE HIGHER EDUCATION
    DISPUTES BETWEEN TWO FIT PARENTS

    Meyer began the long cascade of cases specifically rejecting a broad Parens Patriae notion that children were held in “common” between the State and the parent. Id. at 401. The State of New Jersey has taken the opposite approach with N.J.S.A. 2A:34-23(a)(5), Newburgh v. Arrigo, 88 N.J. 529, 545, 443 A.2d 1031 (1982) and Hoefers v. Jones, 288 N.J. Super. 478, (App. Div. 1996). The Hoefers case, stated:

    “A child’s education, like other childhood needs–shelter, food, clothing, health, recreation, social, cultural, to name but a few–is an obligation for which parents have been historically held accountable by statute, by Chancery Courts asserting parens patriae powers on behalf of the state. N.J.S.A. 2A:34-23, State v. Perricone, 37 N.J. 463, 475, 181 A.2d 751 (1962) cert. denied. 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962).”

    The statutory law and the law of Necessary Education appears to reject the Constitutional command that that the exercise of Parens Patriae Power is subject to the United States Constitutional system of Ordered Liberty. See Meyer v. Nebraska, 262 U.S. 390, 290 (1923)(“Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.”). Particularly after the enactment of the Thirteenth and Fourteenth Amendments, the Supreme Court applied due process principles and strict scrutiny analysis to limit state invocations of its Parens Patriae Power. Liberty in “matters relating to marriage, procreation, family relationships, and child rearing and education” are “’fundamental’” and “’implicit in the concept of ordered liberty’ as described in Palko v. Connecticut, 302 U.S. 319 (1937).” Paul v. Davis, 424 U.S. 693, 713 (1976). “In these areas . . . there are limits on the state’s power to substantively regulate conduct.” Id.
    The admonition to function in a ‘parental’ relationship of standing is not an invitation to procedural arbitrariness. Kent v. United States, 383 U.S. 541, 555 (1965). States may not exercise such power in a manner that has “all-encompassing scope and . . . sweeping potential for broad and unforeseeable application.” Wisconsin v. Yoder, 406 U.S. 205, 234 (1972). With respect to school teachers, they have only such portion of parental authority as a parent may choose to temporarily commit to the teacher’s charge, in order to answer the purposes for which the parent has initiated the employment. Vernonia School District 47J v. Action, 515 U.S. 646, 654-55 (1995)(quoting 1 W. Blackstone, Commentaries on the Laws of England 441 (1769)).
    State governments may not properly override parental decisions or terminate custody, unless 1) parents delegate their authority to the state voluntarily and knowingly, or 2) the state demonstrates through appropriate due process that there is clear and convincing evidence that the parents have triggered state parens patriae interests by placing their children in clear and present danger. C.f. Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d. Cir. 1997).
    In this case, the liberty of both parents is an issue. They both have a liberty interest to direct the upbringing and education of their child(ren) under their control and without State interference. Therefore, the Court may not exercise Parens Patriae Power to resolve a private or higher education dispute or contributions. The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better decision could be made. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The law allows Family Court Judges to make child rearing educational decisions, simply because the law allows them to believe a better decision can be made. The Law of Necessary Education violates this principal. It is true that a disagreement between the Parties exists. However, simply because the decision of a parent is not agreeable to a child or other parent or, because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. Parham v. J. R., 442 U.S. 584 (1979).
    The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Parham, 442 U.S. at 603 (emphasis in original). Parents and children do not have competing interests, and it is not correct to presume or assume that parents and children are “adversaries.” Santosky, 455 U.S. at 760 (“until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship”). Our Constitution treats parents as natural allies of their children. Parham, 442 U.S. at 602.
    Our jurisprudence holds a high regard for the family into which a child has been born. Santosky, 455 U.S. at 759, 765-66 (rejecting “balanc[ing]” of the “the child’s interest in a normal family home against the parents’ interest in raising the child,” or consideration of “whether the child would have a better home elsewhere”). Our Constitution assumes that children want to remain with their natural family. Id. at 766. The Court has never recognized a separate interest or right that is child-specific, per se; the only recognized right for children in this context is the child’s reciprocal right to maintain his natural family relationship. Parham, 442 U.S. at 603 (not all choices will be “agreeable to a child,” but that “does not automatically transfer the power to make that decision from parents to some agency or officer of the state”); Santosky, 455 U.S. at 765. To suggest government’s “special interest” in protecting children, or invoking the altruistic language of “best interest,” or simply saying that “children have a right to be free from harm” are legally insufficient criteria for “children’s rights” and elevating the role of the state into the lives of families. See Martin Guggenheim, What’s Wrong with Children’s Rights, passim (Harvard University Press 2005). All human beings have dignity and the right to be free from harm–it is not uniquely a children’s right. The Santosky Court’s “refusal to consider the rights of the children [was] analytically correct, since such consideration would involve the assumption of unproven facts. The refusal demonstrates the Court’s commitment, as a policy matter, to the autonomy of the family unit.” Barbara Shulman, The Supreme Court’s Mandate for Proof Beyond a Preponderance of the Evidence in Terminating Parental Rights, 73 J. Crim. & Criminology 1595, 1606 (Winter 1982).
    Our jurisprudence does not see the child in isolation, but as an extension and ward of his parents, not the state. Parham, 442 U.S. at 602-03 (parents are presumed to “act in their child’s best interest”); Pierce, 268 U.S. at 535; Meyer, 262 U.S. at 401. Children are not merely autonomous individuals needing the cacophony of alternate voices (e.g., state social services, guardian ad litems, educators, etc.) contending to speak on their behalf. Yoder, 406 U.S. at 213; Parham, 442 U.S. at 606 (rejecting childhood by committee approach); Guggenheim, What’s Wrong with Children’s Rights 95 (e.g., assigning independent counsel for a toddler to advance the child’s so-called interest is a legal fiction, as that grown-up lawyer assigned is merely advancing what that grown-up envisions as best for the child). Our Constitution rejects the notion that children receive independent consideration “absent a finding of neglect or abuse” by their parents. Parham, 442 U.S. at 604. The law of Necessary Education embraces this notion and circumvents precedent from the United States Supreme Court.
    The State and the parent do not stand in equipoise, or have an equal interest in the child. Vivek S. Sankaran, Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Rights of Non-Offending Parents, 82 Temple Law Review 55 (Spring 2009) (showing a historical rejection of broad parens patriae doctrine as case law on parental liberty interest was developed in Meyer, Pierce, Prince, Yoder). “The State’s interest in caring for … children is de minimis if [the parent] is shown to be fit.” Stanley, 405 U.S. at 657-58 (the State “spites its own articulated goals” of child protection when it presumptively and arbitrarily removes children without a due process hearing). The State’s parens patriae interest in promoting the welfare of the child is secondary and triggered only where parents have been determined unfit. The law of Necessary Education violates this principle. Santosky, 455 U.S. at 767 n.17; cf. In re Gault, 387 U.S. 1, 16, 30 (1967) (pejoratively describing latin term parens patriae as a rationalization “to exclude juveniles from the constitutional schemes” and invite “procedural arbitrariness”). The State has no viable interest in children who are with fit parents. The State only has an interest in children who are genuinely abused and need protection, and even then, that interest arises only after a judicial adjudication of parental unfitness.

25. 

    Giovanni on February 17, 2012 at 5:17 pm

    In Pierce v. Society of Sisters, supra, the Court again upheld the wide scope of the liberty interest provided to parents by the Fourteenth Amendment when it overturned an Oregon statute that prohibited parents from enrolling their children in private school. Pierce, 268 U.S. at 530. Relying on Meyer, this Court held that the statute:

    unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. … The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. 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.

    Id. at 534-35.

    The law of Necessary Education violates principal. The Court reaffirmed its commitment to the rights of natural parents in Wisconsin v. Yoder, 406 U.S. 205, 207 (1972), overturning convictions of Amish parents for removing their children from school before age sixteen. The state’s interest in providing universal education had to “yield to … the interest of parents in directing the rearing of their off-spring.” Yoder, 406 U.S. at 213-14. The same is true about the Law of Necessary Education. The Yoder Court noted that the state can override parents only where “it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” Id. at 233-34. “The primary role of parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Id. at 232. The law of Necessary Education violates principal.
    Around the same time, the Court also took up the issue of parental rights as applied to an unwed father in Stanley v. Illinois, 405 U.S. 645 (1972). Following the death of the mother, Stanley, the natural father, directed that his children move into his friend’s home, much to the chagrin of the state, which sought to make another choice for the children. Stanley, 405 U.S. at 658.

    The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children “come[s] to this Court with a momentum for respect lacking when appeal is made to the liberties which derive merely from shifting economic arrangements.”

    Id. at 651. The Court concluded “that all parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody” and laid the groundwork for the presumption of parental fitness. Id. at 658.
    In Moore v. City of East Cleveland, supra, this Court struck down a housing ordinance that restricted categories of relatives who could live together as “intrud[ing] on choices concerning family living arrangements.” Moore, 431 U.S. at 499 (plurality opinion). The Moore court employed the principles elucidated in “Yoder, Meyer and Pierce” in a school setting, and extended them to “households” where “decisions concerning child rearing” were “shared with … other relatives” who take on major responsibilities for the child. Id. at 503-05.
    In Parham v. J.R., supra, the Court considered the ability of the state to second guess the decisions of natural parents to commit their own child to a mental institution without state approval. The Court recognized that parents made such difficult choices based on their own observations and independent professional recommendations, and that “[n]either state officials nor federal courts are equipped to review such parental decisions.” Parham, 442 U.S. at 604.
    [H]istorically [the law] has recognized that natural bonds of affection lead parents to act in the best interest of their children. … The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to the American tradition.

    Id. at 602-03 (emphasis in original); see also Smith v. Organization of Foster Families, 431 U.S. 816, 847, 860 (1977) (differentiating foster families as “squatters” to the rights enjoyed by natural parents, who would have a “liberty interest” in the “survival” or an “expectancy” of “continuation” of their family that is protected under the Fourteenth Amendment).

    In Santosky v. Kramer, 455 U.S. 745 (1982), the Court squarely addressed parental rights in the context of a state proceeding seeking to extinguish both a family’s natural and legal relationship. The Santosky Court held that before a state could completely and irrevocably sever the rights of a parent in their natural child, due process required that the state support its allegations by at least clear and convincing evidence. New York’s statutory scheme providing for a “fair preponderance of the evidence” standard was “inconsistent with due process” owed to parents and children. Santosky, 455 U.S. at 758. The Court held that the private interest affected in maintaining family association was a “commanding” one, and that the “risk of error” from employing the lower standard of proof was “substantial” since it distributed a near equal allocation of risk of error as shared between the parents and the State. Id. at 761 (“we have no difficulty finding that the balance of private interests strongly favors heightened procedural protections”).
    Though the children had been in the state’s care for three years, and the parents were not ideal, this Court held that the “fundamental liberty interest of natural parents in the care, custody and management of their child” did not “evaporate.” Id. at 753. The Court again reiterated that a natural parent’s “interest [is] far more precious than any property right.” Id. at 758-59.
    After Santosky, this Court decided that a state may not condition a right to appeal a termination of parental rights decree on that parent’s ability to pay a record preparation fee in M.L.B. v. S.L.J., 519 U.S. 102 (1996). Though much of the M.L.B. opinion was based on the equal access to courts rationale, this Court nonetheless reaffirmed that the family relationship is a protected associational right that is “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B., 519 U.S. at 116.
    The Court has remained steadfast to the rights of natural parents. In Troxel v. Granville, 530 U.S. 57 (2000), six justices coalesced around the parents’ liberty interest to determine a child’s associations, finding “breathtakingly broad” a state law that, based on a “best interest” standard, opened the door to any third parties seeking legal relationships with children over the objections of the natural parents. Troxel, 530 U.S. at 65-68 (plurality opinion), 78 (Souter, J., concurring), 80 (Thomas, J., concurring).

    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 this Court.

    Id. at 65 (plurality opinion), accord at 77 (Souter, J., concurring); 80 (Thomas, J., concurring).
    The distillation of these cases means that natural parents have the protected right to direct, control, care for, and manage their children, including the right to determine how to educate their child(ren). The statute and case law on Necessary Education is so beyond a reasonable doubt in conflict with constitutional provisions that it should be stricken down as invalid.

26. 

    Giovanni on February 17, 2012 at 5:18 pm

    THE LAW OF NECESSARY EDUCATION IS UNCONSTUTIONAL BECAUSE PARENTS HAVE A FUNDAMENTAL RIGHT TO CONTROL THE EDUCATION OF THEIR CHILDREN

    The parents’ right to control the education of their children is fundamental. The law of Necessary Education somehow embraces a broad Parens Patriae notion that children are held in “common” between the State and the parent and circumvents The Parental Rights Doctrine. The law can compel parents or a parent to contribute towards private and higher education for their children; compel a parent to pay adult child support beyond the age of majority over the objection of fit parents; without a finding of unfitness; without a finding of harm; without regard that free public education is adequate even for the elite student, without regard that parents have fundamental right to control the education their children without state interference and that the present law infringes upon this right to a select class of parents, without regard that the right to rear one’s child has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, without regard that as long as a parent adequately cares for his or her child is fit, (as in this case), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children, without regard that family liberty may not be interfered with, under the guise of protecting the public interest, without regard that parents’ have a fundamental right to keep their children free from government standardization, without regard the State is exercising rigid and repressive control over private family life to a select class of parents, without regard that Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better decision could be made, without regard that the State’s compelling interest in education of a minor or an adult child is limited to the N.J. Const. art. VIII, § 4, P 1, not private or higher education, without regard at common law, parents had no legal right to petition the court for private elementary, private high school or college education contribution, without regard that parents have an expressed liberty interest in “matters relating to marriage, procreation, family relationships, and child rearing and education” are “’fundamental’” and “’implicit in the concept of ordered liberty,’ without regard that childrearing autonomy is rooted in the right to privacy, without regard the State’s exercise of Parens Patriae power shall be subject to the United States Constitutional system of Ordered Liberty, without regard the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition; without regard the decisional framework employed by statute and case law, directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child; without regard that a decision of parent is not agreeable to the child or other parent, or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state; without regard the right of parents to raise their children is a pre-constitutional right having its origins entirely apart from the power of the State and without regard the tradition of parental authority is… one of the basic presuppositions of individual liberty and without regard that the state’s interest in education, i.e., creating good citizens … yield[s] to … the interest of parents in directing the rearing of their off-spring.

    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 this Court. In Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), we 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.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (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.” 268 U.S. at 535.
    In Pierce, the Supreme Court struck down an Oregon compulsory education law which, in effect, required attendance of all children between ages eight and sixteen at public schools. The Court declared under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children. [emphasis supplied] The same can be said about New Jersey’s Law on Compulsory Necessary Education.
    In Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ” It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” 321 U.S. at 166.
    Meyer, 262 U.S. at 400 (“it is the natural duty of the parent to give his children education suitable to their station in life”); Yoder, 406 U.S. at 213 (the state’s interest in education, i.e., creating good citizens … “yield[s] to … the interest of parents in directing the rearing of their off-spring”); Prince, 321 U.S. at 166 (parents have the “primary function” to prepare children); Troxel, 530 U.S. at 65-66 (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents”) (emphasis added).
    In subsequent cases also, the Court has 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, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (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'” (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (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”); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (discussing “the fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right . . . to direct the education and upbringing of one’s children” (citing Meyer and Pierce)).
    The distillation of these cases means that natural parents have the protected right to direct, control, care for, and manage their children, including the right to determine how to educate their child(ren). The law on Necessary Education is so beyond a reasonable doubt in conflict with constitutional provisions that it should be stricken down as invalid.

27. 

    Giovanni on February 17, 2012 at 5:19 pm

    THE LAW OF NECESSARY EDUCATON VIOLATES THE STATE AND FEDERAL CONSTITUTION EQUAL PROTECTION CLAUSE.

    The underlying premise upon which the New Jersey Supreme Court undertook its constitutional analysis of the private and post-secondary educational support scheme was that the legislation created two discriminatory classifications: married parents with immunity from private education contribution and divorcing/non-custodial parents that can be forced to pay an obligation against their will.
    Under the guise of protecting the public interest, legislation and case law developed to protect children of divorced or single parents from being unjustly deprived of opportunities they would otherwise have had if their parents had not divorced. The statute and case law was promulgated to ensure that children of divorced or single families are not deprived of educational opportunities solely because their families are no longer intact. The result is an incursion on Constitutional Parental Rights, which routinely allows judges to make child rearing educational decisions. In addition to heightened judicial involvement in the financial and private personal lives of divorcing and single parent families with children that is not necessary with intact married families with children. The New Jersey Supreme Court concluded that because of the unique problems of divorced families, the legislature could rationally conclude that absent judicial involvement, children of divorced families may be less likely than children of intact families to receive post-secondary educational support from both parents. This unconstitutional rationale circumvents the holding in Meyer v. Nebraska, 262 U.S. 390, 290 (1923), the court held that the State cannot, under the guise of exercising its police power, interfere with guaranteed liberty interests.
    It is also believed, that New Jersey and a few sister State Courts have placed much emphasis on the following article in attempt to defeat an Equal Protection Claim is also at odds with the Constution.
    Smith, Educational Support Obligations of Noncustodial Parents, 36 Rutgers L.Rev. 588, which discusses, in some detail at pages 626-41, the constitutionality of post-minority college support obligations, and concludes with this observation:

    “Following divorce the noncustodial parent, most frequently the father, often establishes a new life for himself, possibly including a new spouse, stepchildren, and new children. One result is that the interest, concern, care, and money of the noncustodial parent that is available for the children of the original marriage often declines or vanishes altogether. This is particularly true in such matters as the cost of education for their post-majority children. By imposing an educational support obligation on these parents, at least one of the disadvantages caused children by divorce can be reduced or eliminated. It is true that the imposition of this burden on divorced noncustodial parents establishes a classification with discriminatory obligations. However, as the Childers [v. Childers] [89 Wn.2d 592, 604, 575 P.2d 201, 208 (1978)] court pointed out, instead of an arbitrary, inequitable, unreasonable, or unjust classification, what exists is a package of special powers in equity that the courts, regardless of legislation, have long used to protect the interests of children of broken homes and to assure that the disadvantages of divorce on these children are minimized. In short, the courts have found a reasonable relationship between this classification and the legitimate state interest in minimizing the disadvantages to children of divorced parents….” 36 Rutgers L.Rev. at 641.
    With all due respect, this article is plagued with constitutional informalities and is an outrageous attack on Fundamental Parental Rights & Equal Protection. See Points One, Two and Three, which were never addressed in any court in any state concerning Post Majority Support or in this State, the Law of Necessary Education. The Court’s Parens Patriae Power it claims to have circumvents the holding of Meyer, which began the long cascade of cases specifically rejecting a broad Parens Patriae notion that children were held in “common” between the State and the parent. Id. at 401 As a citizen of this State, I can not accept this position of totalitarianism and social control under the guise of protecting the public interest. I stand for the Constitution, liberty, parental rights & freedom. The Newburgh decision is correct when it stated that parents are not under a duty to support children after the age of majority is correct. However, I do not concur with the rationale to allow a judge or government to know what’s best for a minor or an adult child and that you can somehow believe that you can run our lives better than we can.
    “I want for our country enough laws to restrain me from injuring others, so that these laws will also restrain others from injuring me. I want enough government, with enough constitutional safeguards, so that this necessary minimum of laws will be applied equitably to everybody, and will be binding on the rulers as well as those ruled. Beyond that I want neither laws nor government to be imposed on our people as a means or with the excuse of protecting us from catching cold, or of seeing that we raise the right kind of crops, or of forcing us to live in the right kind of houses or neighborhoods, or of compelling us to save money or to spend it, or of telling us when or whether we can pray. I do not want government or laws designed for any other form of welfarism or paternalism, based on the premise that government knows best and can run our lives better than we can run them ourselves. And my concept of freedom, and of its overwhelming importance, is implicit in these aspirations and ideals.”
    – Robert Welch, “My Concept of Freedom” (1964)

    “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

    ~Ronald Reagan, 40th president of U.S.
    The discriminatory classification adopted by both our legislature and case law is not focused on the parents but rather the children. The question is whether similarly situated young adults, those in need of financial assistance, may be treated differently. There is no rational reason why those similarly situated with respect to needing funds for college education, should be treated unequally. See Curtis v. Kline, 666 A.2d 265 (Pa. 1995). The present Necessary Education Law allows a child of divorced or single parents a greater legal right to a private or college education than a child whose parents remain married.
    The law of Necessary Education circumvents N.J. Const. Article VIII, § 4, P 1, which states:
    The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.
    The New Jersey State Constitution has established a Constitutional Right for all of its citizens to participate in free public education and has established compulsory attendance requirements that in no case extend to post-secondary education to children of married parents, divorcing parents or single parents. The State’s compelling interest with respect to a child’s education limited to free public schools.
    It has been said that rights cannot exist merely in theory or on paper; they must exist in reality or they are meaningless. See Cooper v. Nutley Sun Printing Co., 36 N.J. 189, 197 (1961) (New Jersey Constitution does not embody rights in a vacuum, existing only on paper. And where rights are not equal in application or practice, then the promise and guarantee of equal rights remains unfulfilled. It is a commendable practice of recognizing when “one of our decisions has consequences that were not fully anticipated.” Pinto v. Spectrum Chems. & Lab. Prods., 200 N.J. 580, 598 (2010). Logically, that axiom is equally applicable when one of its decisions has not had the remedial consequences that the Court anticipated would result. Such is the case at bar.
    The law of Necessary Education must be struck down — even if it appears to have good intentions. There can be no dispute that it does not apply evenhandedly to similarly situated people. Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20, 37, 42 S. Ct. 449, 66 L. Ed. 817 (1922) (reviewing court must strike down unconstitutional law even though that law is “designed to promote the highest good.” I can agree that the good sought in this unconstitutional law is an insidious feature, because it leads the courts and legislators of good purpose to promote it, without thought of the serious breach it will make in the ark of our covenant, or the harm which will come from breaking down recognized standards.
    The essence of Article I, Paragraph 1 of the New Jersey Constitution, as well as the Fourteenth Amendment, is simple: like citizens in like circumstances are to be treated equally in the eyes of the law. The present law violates these fundamental constitutional principles. The law is unconstitutional and the court should so recognize.

28. 

    Brenda Ellis on April 24, 2012 at 3:07 am

    To the current “wife of a man who is ‘stuck’ paying child support” for children by a previous marriage – the bitter and self-centered attitude does not help the situation. If you can’t handle the fact that your husband fathered children with another woman before you, you shouldn’t have married him. Most mature adults realize the welfare of one’s children (regardless of age) is a lifelong priority, and doesn’t simply end or cease once they turn the magical age of 18. It is the parents’ responsibility to provide for their children, emotionally, spiritually, financially, including through college and beyond – the same way a forty year old might have to care for an elderly parent or sibling with Alzheimer’s. Love doesn’t have an age cut-off. People who are more concerned with their shopping fund than the lives of their children – biological or through marriage, should remain on their own. They don’t have the capacity to love or put other’s first. Everything in their world is legalistic and “what’s in it for me, me, me.” I raised and supported my children on my own, while their millionaire deadbeat dad spent his time and money on his sex and leisure life. My children were available for every weekly visitation in 20 years. Non-custodial dad was abusive and didn’t want to responsibility of joint custody. He successfully got away with not paying child support, because there is no way to enforce payment of child support – even after the custodial parent spends thousands more in legal fees to prove non-payment, and arrearages with punitive damages are re-ordered by a judge. My grown children know who loves them. My son who is ill, needed daily meds, so we did without basics on my income – esp after losing our home in a fire and tornado. We slept in my car, while dad went on vacations. I am now send them to college. The way some of these hateful, immature people cut down the kids (at 30 and 50 – they will still be his KIDS), saying they go to college just to milk more money from “her” hubby – it’s sickening. Frankly, the decisions he makes in regards to paying what he owes to his kids is NONE of the 2nd, 3rd, 4th wives’ business. Instead of nurturing a relationship with them, she is praying the laws change, to cut them out of their dad’s life sooner. She’s what age – and counting on someone else to take care of her, yet she can’t stand hubby taking care of his own children. UGH

29. 

    Karen on April 24, 2012 at 11:27 am

    This is addressed to Brenda Ellis who posted her acerbic comments on April 24th and other similar minded individuals.

    “The current wife of a man who is ‘stuck’ paying child support for children by a previous marriage” –as you referred to her–did not complain once about paying child support. Her concerns were limited to college-related expenses only. To be clear, paying child support and paying college expenses are not the same thing. She too has children with this man and, in my opinion, providing for the basic needs of those children up until the time they become adults should take precedence over paying college tuition and expenses for his “adult children”, who, in fact, can work and support themselves and go to school part-time. After all, a child of 10 should not be expected to go without so that an “adult child” of 20 doesn’t have to pay for their own tuition, or cell phone or gas expenses while they are attending college. Given the current rate of divorce (more than 50%), second and even third marriages, and therefore subsequent children, are very common today. Therefore, if their paying for college for his “adult children” is financially disadvantaging her children, who sound like they are actually children (i.e. minors), it is most definitely her business.

    The bottom line is that divorced parents should not be required to pay for their children’s college costs unless married parents are required to do the same. AND until there is a law that requires adult children to financial care for their aging parent(s) should the need arise, there should be no law requiring any parent to pay for their children’s college when they should be saving for their own potential financial misfortunes and their senior years. What help will those states that forced these parents to pay for their children’s college offer to them when they are unable to support themselves in their 60s or later years?

    By the by- I would argue that, like children of divorce, divorced parents are a disadvantaged class. They have to pay divorce related legal fees, which often amount to thousands of dollars, and establish a separate residence based only on their individual income or with some help from their former spouse in the form of child support. They are a financially disadvantaged class when compared to married parents.

    If a parent is able and willing to pay for college, great! My parents were married, but they were not well off. They worked very hard to make sure that I and my brother and sister had adequate housing, food, medical and dental care, clothing, etc. That being the case, I had to take out student loans myself to attend college and I think I excelled all the more for it. I served in the military so that I would receive the GI Bill and the rest was paid with student loans, which I am still paying off today. In total, my student loans amounted to $50,000, but my minimum payment is doable at $215 per month stretched out over many years. This is less than what many pay for their monthly car payment. Why can’t these “adult children” pay off their student loans on their own? Why should they enter their mid-20s debt free or with very little student debt when children of married parents are not given the same luxury?

    Should I be forced to pay my own student loans and that of my “adult children” too? Or, should I be exempt since no one was forced to pay for my college? If I were financially well-off, then I would have no problem paying, but I am not. As most of us know, only a small percentage of the population is so well off that they can pay the current costs of college without incurring debt that will jeopardize their own financial well being in their middle age or senior years.
    It is true that most parents are approximately age 40 or older by the time their “adult children” are entering college. Parents of all types (married, divorced, never married etc.) typically have spent a considerable amount of money raising their children until the age of 18 or 19. As a result, the statistics show that the vast majority of people are not financially prepared for retirement and their senior years. Who is better capable of paying off tens of thousands of dollars of student loan debt? Someone in their middle age or approaching middle age who should be saving for their retirement or someone who is in their early to mid-20s and has decades of work ahead of them?

    Two relevant issues were reported in the news this morning. The first is that due to the current economic situation, many recent college graduates are unemployed or underemployed. Therefore, their expensive education is going to waste. Why not work part-time and attend school part-time, paying for much of it along the way? An individual who has both work experience and a degree will be more desirable to potential employers. Also, their determination to take responsibility for financing their own education will likely result in numerous positive developments: better grades, a higher level of maturity, more self-confidence, etc.

    The second is that Medicaid/Medicare and Social Security benefits are all projected to be in the red in the next 12 (med) to 20 (SS) years. It is very difficult for a 45 year-old or a 55-year old to find work if they have been laid off. Age discrimination is a very real problem. Furthermore, people at this age often do not have the energy and good health to work more than one job to start saving for their 60s, 70s, etc. and they will not have much time left to save their money. Most people have only their 40s, 50s, and early 60s to prepare for this and not a lot of disposable income to put aside. If they are forced to incur and carry even more debt into their 40s and 50s and beyond so that their “adult children” don’t have to pay off their own student loans, their ability to save money for their Golden Years is greatly diminished.

30. 

    College Mom on June 2, 2012 at 2:29 am

    The point and ‘spirit of the law’ behind shared costs for college expenses, is that the Federal Government calculates the parents’ income (both the custodial and non-custodial parents) until the age of 24 when determining the Expected Family Contribution (EFC) that determines Federal PELL Grant and Subsidized loan eligibility for financial aid. This has always been the case for financial aid for college, and by the statutes that determine federal financial aid eligibility for a student who is less than 24 years of age, the parents (whether married or not) are expected to contribute to the college education based on income level. If the parents combined income (married or divorced) is greater than 40k a year, the Federal Government when determining financial aid eligibility, expects the parents to contribute….this is part of the FAFSA process to receive financial aid, and a point of Federal Law. When parents are married, this is a non-disputed issue. When parents are divorced though, if the non-custodial parent makes 50k a year and the custodial parent makes only 20k a year, the child is not eligible for PELL grants because of the non-custodial parent’s income, that the child would otherwise be eligible for if EFC were determined solely on the custodial parent’s income. The purpose of expecting parents to pay for their share of college tuition is to make up that difference. Based on the income shares model that most states use in determining child support, the non-custodial parent should be responsible for their ‘share’ of the EFC the Federal Government calculates when determining financial aid so that the EFC the government expects due to the high income of the non-custodial parent, doesn’t unfairly fall on the custodial parent, or the lack of being able to obtain the EFC for tuition, because the non-custodial parent with the income that creates the EFC doesn’t want to pay, doesn’t prevent the person from attending college.

    IF rulings are made for expenses beyond what the Federal EFC on the FAFSA is, that would be unfair and a point of argument, and an improper application of the law. The only support paid for children in college should be the ‘income shares’ portion of the EFC as determined by the FAFSA, which is a point of federal law and takes into consideration family size and support obligations of both parties.

31. 

    admin on June 29, 2012 at 11:21 pm

    That’s all great information save for one glaring missing fact… only divorced parents can be ordered by the Court to pay for a child’s higher education. Parents from intact families are not ordered to pay for such expenses, therefore, it”s unfair, it’s unconstitutional, and should continue to be eliminated as “law” in all states that are clinging to it. There is no “spirit” with regard to that aspect of the discussion. Married – you can’t be court order to pay for college expenses. Divorced, you can (in at least a few states still). It’s wrong.

32. 

    Tabitha on July 11, 2012 at 10:37 pm

    Kudos to Karen who took the time to address Brenda Ellis’s comment. So, so true. Why is it the parent paying child support feels they have no other financial obligations although it was spelled out in the divorce decree? Why is it that any non custodial parent can’t find the character to do the right thing and to stop fighting the system in hopes that they will not have to support their child. If they were married, they could have discussed items such as continuing education through college, but if they divorce, those decisions have to be made upfront and approved by a judge. A simple fact of life, get over it.

33. 

    lisa on July 14, 2012 at 11:34 pm

    Basically, if is legal to force ‘ONE’ parent who has nothing at 46 to pay college support and the other parent who has 640,000 in found cash/assets- from the said marriage, to pay nothing. So force both married parents to pay and if divorced-*** force the other parent to pay as well! I would like to file a law suit against the state….14th ammendment. There are many Men and Women who are greedy and self orientated and do not care about fair, and during the marriage they are only only only in the marriage for money’s sake.. They are just as bad as many people behind bars…the only difference is they get away with it. I believe the courts are forcing college support to ‘adults’ because they can get away with it. I went to college and worked two jobs and raised my daughter…Grow up america~! No NO NO No more entitlements! P.S. Karen is on the money…. I just felt these points need elaborating. If I could Sue and Win I would. Our courts need modifications.

34. 

    Amanda on August 29, 2012 at 1:25 pm

    In reference to Karen April 24th, 2012 11:27 am
    I want to thank you for sticking up for “The current wife of a man” (Jennifer December 21st, 2011 12:13 am 🙂 and for all of your additional comments. I am in the same situation as her and I feel her pain. The new spouse; the new family is always set aside and NOT considered in these situations. What about her and her children? Should they really go without so the ex and her children don’t have to? doesn’t that make THEM disadvantaged? Who is going to pay for their education? Doesn’t it make more sense that we ALL work for and earn what we have for ourselves? I know I had to… no one helped me! The law is supporting our children being children and not being responsible for far beyond the age of 18. So why even say they are an “adult”? People wonder why the country is in the mess it is… this is one tiny piece that contributes to the problem instead of the solution. Too many out there want something for nothing…..

    Money is NOT what is in the best interest of the child; what you teach them is! – mentoring, good boundaries, discipline, morals, values, etc… And as the admin states, the one glaring fact missing is that ONLY in split family situation are parents, particular to non-custodial, forced to go above their means putting their own lives in jeopardy to pay college tuition for children.

    “It’s not what you do for your children, but what you have taught them to do for themselves, that will make them successful human beings” – Ann Landers

35. 

    Paul on August 30, 2012 at 9:53 am

    I would be interested in learning how many participants affected by this issue are/were active duty military (or activated reserve/national guard) or their spouse, or is/were a federal government employee.

36. 

    greg on September 23, 2012 at 9:30 am

    I live in Missouri, i have put money in a 529 utma and a 529 account for years and a lump sum many years ago into the utma.

    can i use this money as my contribution towards college since i elected to use this money as the vehicle for saving for my kids college vs paying off my house, etc.

37. 

    Amber on October 15, 2012 at 8:28 pm

    This website makes me angry. I went and talked to a judge personally today and they said my dad doesn’t have to pay for my college expenses or a car. My mom and I don’t have the money for all of it and he refuses to pay a dime. And I live in the state of Indiana so this website gives completely false information.

38. 

    Dave on May 26, 2013 at 10:06 pm

    So, the child could go to college and have the non custodial continue to pay child support. This is even if the custodial parent pays nothing for the child going to college? How does this work out? I would think both parents would have to pay into it. Otherwise, it’s a very unfair system.

39. 

    Tina Owens on June 28, 2013 at 9:01 pm

    @ College Mom

    According to the FASFA website:

    Which parent’s information should I report on the FAFSA?
    If you need to report parent information, here are some guidelines to help you:

    If your parents are living and married to each other, answer the questions about both of them.
    If your parents are living together and are not married but meet the criteria in your state for a common-law marriage, answer the questions about both of them. If your state does not consider them to be married, fill out the parent information as if they are divorced. (See below.)
    If your parent is widowed or single, answer the questions about that parent. If your widowed parent is remarried as of the day you sign the FAFSA, answer the questions about that parent and the person whom your parent married (your stepparent).
    ******If your parents are divorced or separated, answer the questions about the parent with whom you lived more during the past 12 months. If this parent is remarried as of today, answer the questions on the FAFSA about that parent and the person whom your parent married (your stepparent).******
    If you lived the same amount of time with each divorced parent, give answers about the parent who provided more financial support during the past 12 months or during the most recent 12 months that you actually received support from a parent.
    The following people are not your parents unless they have adopted you: grandparents, foster parents, legal guardians, older brothers or sisters, and uncles or aunts.
    EXCEPTION: The FAFSA asks about your parents’ education level. For these two questions, your parents are considered to be your birth parents or adoptive parents—your stepparent is not your parent in these questions.

    If you were adopted, follow the instructions above for parents, based on your adoptive parents’ current marital status.

    http://studentaid.ed.gov/fafsa/filling-out/dependency#which-parents-information-should-i-report-on-my-fafsa

    Therefore, EFC is NOT determined by both parents’ (divorced & married) income.