Emancipation and Child Support Adjusted To Military Enlistment Date
- February 19, 2015
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Schottel v. Kutyba, is a New Jersey case coming out of Bergen County, involving the emancipation and termination of child support of the daughter of a divorce couple. Specifically, the Plaintiff appealed the case because the Family Court judge issued a Court Order that was effective on the date it was entered instead of on the date the Plaintiff’s daughter joined the military, six (6) months prior which affected when her child support obligation was terminated with regard to the child. The Appellate Court found that because the Plaintiff’s prima facie showing that her eighteen (18) year old daughter had in fact enlisted in the United States armed forces in 2013, there was a presumption of emancipation at that time which was not rebutted and therefore the Family Court was mistaken in failing to make the Court Order retroactive to the date the daughter enlisted. The laws in New Jersey regarding emancipation have been well established. Emancipation occurs at the point “the child has moved ‘beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of he or her own.'” Filippone v. Lee, 304 N.J. Super. 301, 308 (App Div. 1997); Bishop v. Bishop, 287 N.J. Super. 539, 598 (Ch. Div. 1995). It is the act “by which a parent relinquishes the right to custody and is relieved of the duty to support a child.” Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Therefore, a court’s decision to grant an emancipation date predating the filing date of an application for emancipation constitutes an exception to the statutory prohibition against retroactive modification of a child support obligation. J.S. v. L.S., 389, N.J. Super. 200, 207 (App. Div. 2006). Many children throughout New Jersey continue to be dependent on their parents for a time after attaining the age of eighteen (18), specifically to pursue higher education. Proof of majority satisfies a non-custodial parent’s prima facie showing of emancipation which in turn shifts the burden to rebut the presumption of emancipation to the custodial parent. The Plaintiff in this case, made notation in her Motion papers that the courts have long recognized that emancipation can occur upon a child’s induction into military service. Slep v. Slep, 43 N.J. Super. 538, 543 (Ch. Div. 1957). Since the parties’ daughter had already attained the age of majority by the time she graduated from high school and then she immediately enlisted in the armed forces, the Plaintiff’s proof of those facts constituted proof of her emancipation. Therefore, the decision of the Family Court was reversed and remanded for the issuance of a Court Order reflecting the child’s emancipation date as of the date she enlisted in the military and the subsequent re-calculation of the Plaintiff’s child support arrears to account for that. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). If you have questions regarding the legal standard for emancipation or how a child’s emancipation affects a parent’s child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about emancipation, divorce, alimony, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.