Canning v. Canning and the Question of Constructive Emancipation

canning-constructive-emancipation“THIS MATTER having been brought before the Court by way of an Order to Show cause filed by the Plaintiff, Rachel Canning, represented by Tanya N. Helfand, Esq., and notice having been provided to the Defendants, Sean Canning and Elizabeth Canning… ORDERED that the parties shall provide trial briefs to the court and counsel which shall include a discussion of constructive emancipation…”

So, what exactly is “constructive emancipation” and why might the Courts be asking for a discussion of this for the “gone viral” New Jersey Canning v. Canning case?

“Emancipation” refers to an act or a set of circumstances that results in a parent relinquishing the right to custody of a child while also being relieved of the duty to support the child. Emancipation is treated differently from state to state. New Jersey courts haven’t generally used the term “constructive emancipation,” but there are some similar concepts that apply.

We can look at New York State to get an idea of how the term constructive emancipation might be used. In New York, a child is normally entitled to be supported by his or her parents until the age of 21, but certain events can result in the child being emancipated at a younger age. If the child is under 21 but is married, or self-supporting, or in the military, the child is considered to be emancipated. Generally a child between the ages of 17 and 21 who has left the parents’ home and is refusing to obey their reasonable commands, will also be treated as emancipated, or considered “constructively emancipated.” (https://www.nycourts.gov/courts/nyc/family/faqs_support.shtml#su1). The question is whether the child has left the home voluntarily and without sufficient cause, and has withdrawn from parental control and guidance (see, e.g., Matter of Roe v Doe, 29 N.Y.2d 188 (1971).

In New Jersey, the age of majority is 18, but children are not automatically emancipated at 18. Instead there is a presumption against emancipation before 18 and in favor of emancipation upon attainment of age 18. Either way, the court will look at the specific facts of each individual case. The essential question is “whether the child has moved beyond the sphere of influence and responsibility exercised by a parent” and “obtained “an independent status of his or her own.” (Bishop v. Bishop, 287 N.J. Super. 593, 598, 671 A.2d 644 (Ch. Div. 1995); Filippone v. Lee, 304 NJ Super. 301 (Appellate Div. 1997)).

Looking just at the words, “moved beyond the sphere of influence and responsibility” – that doesn’t sound so different from what New York requires for constructive emancipation—a child who has left home without cause and is refusing to abide by the parent’s rules would seem to be a child who has moved beyond the sphere of influence—but what about “obtaining an independent status?” New Jersey courts have stated that at least prior to the age of 18, the fact that a child is living apart from his or her parent is not enough for emancipation, provided the child is not entirely self-supporting (Filippone v. Lee, 304 NJ Super. 301 (NJ: Appellate Div.). But again, this would be a fact specific question, and for a child who is already 18, the answer might well be different.

The really unusual thing about the Canning case is that these kinds of questions usually come up when parents are divorced, in the context of a custodial parent requesting continuing support from a non-custodial parent for a child who is 18 or older—and New Jersey has in general leaned further than most states in the direction of requiring non-custodial parents to continue support. For example, New Jersey courts have found that children over 18, or at least children who come from reasonably affluent families where they would normally be expected to attend either college or some other kind of post high school education, are not generally emancipated while they are still attending school—and depending on the circumstances, possibly not even when they are attending graduate school. But this is not an absolute rule, again, it is very fact specific. Courts talk about a parent’s duty to provide “necessary education,” but what kind of education is “necessary” depends on all the circumstances.

There is a very famous New Jersey case called Newburgh v. Arrigo, which interestingly, was not a divorce/child support case but an inheritance case, where the court listed a number of factors that should be looked at in evaluating a claim for contribution to higher education. The factors are:

  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.

Newburgh v. Arrigo, 443 A. 2d 1031 (NJ Supreme Court 1982).

The most interesting point there seems to be number 11: Courts recognize that even in the case of divorcing parents, it isn’t necessarily reasonable to expect a parent to pay tuition, particularly tuition to an expensive private school, if the child hasn’t sought the parent’s input and has completely ignored any parental advice and guidance. There are a couple of New Jersey divorce cases (Gac v. Gac, 897 A. 2d 1018 (NJ Supreme Court 2006); Moss v. Nedas, 674 A.2d 174 (N.J. Super.1996) that discuss how the lack of a relationship between parent and child can impact a parent’s obligation to contribute to college. This hinges on a parent’s fundamental right to control and make judgments regarding their children. The interest of parents in the care, custody and control of their children, as stated by the U.S. Supreme Court in Troxel v. Granville (2000) is perhaps the oldest fundamental liberty interests recognized by the courts.

Where a case does not involve divorcing parents, or some other really unusual situation such as the inheritance issue in Newburgh, there should be no standing for the courts to get involved in directing parents to pay for private education for their child. The parents are not depriving her of an education – there is a public school available to her.

Update: Read our follow-up post with further information and discussion about what constructive emancipation might mean and how New York courts have previously used this term.