At age 18, the child becomes an adult, legally beyond the reach of parental decisions. However, not until age 21 does the legal obligation to support that child come to an end (unless extended by agreement).
A parent’s obligation to support may end (or be suspended) before that, as when a child marries, enters the armed forces, or becomes economically independent. However, as a practical matter as long as the child remains under a parent’s roof, economic independence may not be found.
Take the June 28, 2011 of the Appellate Division, Second Department, in Smith v. Smith. There, the Court affirmed Suffolk County Family Court Richard Hoffman ‘s denial of a father’s objections to the order of Support Magistrate (and Pace Law School Professor) Cheryl Joseph-Cherry which awarded $200.00 per month child support to the wife/mother.
The parties’ son worked full-time. He paid for his own car insurance and cell phone. However, the appeallate court found it persuasive that the mother still paid for his food, shelter, clothing, and health and dental insurance.
The decision does not provide greater detail. We don’t know what the child “does” or how much the child earns. Presumably, if the child is in school, we would have been told.
However, the Court did place primary reliance upon the First Department’s 2009 decision in Matter of Thomas B. v Lydia D. That decision, itself placed heavy reliance upon the Second Department’s decision in Matter of Fortunato v. Fortunato, 242 A.D.2d 720, 662 N.Y.S.2d 570 (1997). In Fortunato, the child was found to be emancipated because he was:
working an average of 30 to 35 hours per week … [,] he used his earnings to meet all of his personal expenses, including car insurance payments and telephone charges, and … he voluntarily contributed modest sums to his mother for room and board. Moreover, the son was not attending school, and had no plans to save money for tuition or return to college in the immediate future.
In Thomas B., the First Department contrasted Bogin v. Goodrich, 265 A.D.2d 779, 696 N.Y.S.2d (1999), a Third Department decision also relied upon by the Second Department in Smith. In Bogin, the parties’ daughter was employed, occasionally full time and had no plans to attend college. The court found the daughter was not yet economically independent, and hence not emancipated, because the mother still paid for her food, clothing and miscellaneous expenses, in addition to providing the daughter with a place to live and utilities. (Note: the temptation to do a gender analysis on the emancipation decisions is resisted.)
Thus, whether a child is emancipated is “a fact specific inquiry” into the extent to which the child relies on the residential parent for significant economic support.
For the non-residential parent the “child” is an “adult.” The obligor parent has no say: no say that the child should be in school; no say that if the child isn’t in school, then the child must live on his own. The obligor parent also has no say about the child’s standard of living. Is the reason the child is not supporting himself because of his choice of car, clothing, entertainment, lor ifestyle. If that is a decision effectively being made only by the residential parent, perhaps it should only be the residential parent who bears the costs of the decision.
There is little doubt that Magistrate Cherry, Judge Hoffman in his review, and the four Second Department Justices in their review reached a “fair and reasonable” decision. Here, the father will pay the mother $200 per month during the child’s remaining period of minority. Might another decision have been just as reasonable. Who knows?
However, for the system to make the needed fact-specific inquiry is absurd in an of itself. Both the the public and the parties paid many times the amount involved.
There must be another way.
Perhaps a black and white rule: no school + full-time employment = no support.
Perhaps a formula: prior child support obligation – (% of) earnings = remaining support obligation.
Every aspect of the family law judicial system is exhausted and overwhelmed. Perhaps it is time to reconsider (very, very carefully) the need for fact-specific inquiries in matters such as these and adopt alternatives.