Category Archives: child support

New Case Law: When does the Obligation to Pay for College End?

May 20, 2010

In re Marriage of Baumgartner, Ill, No. 109047 (per Freeman)


In their judgment for dissolution of marriage, Susan and Craig Baumgartner both agreed to contribute to the postsecondary educational expenses of their son Max. After Max was convicted of a criminal offense and was serving a three-year sentence, Craig motioned the court for the removal of the couple’s obligation to pay postsecondary educational expenses for Max.  Without receiving any evidence on Craig’s motion, the circuit court ruled sua sponte that son Max’s incarceration constituted his full emancipation and that any future obligation on Craig’s part to pay for Max’s college education was abated.  The circuit court denied Susan’s motion for reconsideration. Finding no authority to support the argument that Illinois would recognize incarceration as a self-emancipating event, a divided panel of the appellate court reversed, finding the trial court erred in ordering the termination of Craig’s obligation to contribute to Max’s education expenses based solely on the basis of Max’s incarceration.   


Whether the trial court erred in determining that incarceration alone is a self-emancipating event for a minor?


Yes.  The trial court erred in determining that incarceration was a self-emancipating event for a minor. Appellate court judgment affirmed. Cause remanded.


The minor’s incarceration alone was not dispositive as to whether he was emancipated.  Although lengthy incarceration is one of the many situations in which a minor may be found to be emancipated, based on the circumstances of a particular case, the circuit court failed to complete the required analysis to determine the minor’s status in this case. The circuit court record contained no evidence whatsoever pertaining to the parents’ care, custody, control, or support of the minor or whether the minor voluntarily abandoned that support. Minors can emancipate themselves, i.e., place themselves beyond the care, custody and control of their parents. However, emancipation cannot be presumed.  Whether a minor is emancipated depends upon the relevant facts and circumstances of each particular case.

Further, emancipation is not necessarily a continuing status.  A minor may become unemancipated if there has been a sufficient change in circumstances.  The burden of proving emancipation is on the one asserting it.  Changes in life circumstances for a minor such as entering into marriage or the armed services may or may not lead to emancipation, depending on the resulting effects on the minor’s status relative to his or her parents.  Even the commission of a crime by the minor, by itself, is not dispositive of emancipation, although lengthy incarceration is one of many situations in which the minor may be found to be emancipated. The inquiry is whether the minor has become self-emancipated by any means other than reaching majority age, which was not addressed in this case.


The basic ruling here is not necessarily radical. The trial court probably should have heard some evidence before ruling.  Neither the statute nor the case-law automatically presume emancipation. But what I find interesting about this case is the notion of emancipation potentially morphing back to unemancipation. Under this ruling, a child could be married for ten years, divorce, and then potentially have a court order one or both  parents to contribute to her expenses.  In my mind this is particularly egregious in light of the fact that children of in tact families have no right to any contribution from their parents.  The legislature needs to correct this legal anomaly. SNP


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Does a parent’s duty of support include saving a child’s life?

This is an interesting post by Eugene Volokh,  from the “Volokh Conspiracy” Blog, that poses the question whether a parent should have a legal duty to contribute a kidney to a child. If we compel a parent to support a child in order  to economically sustain the child, isn’t it a reasonable extension to require a parent to make this sacrifice as well. And alternatively,  should a  parent be charged with neglect if they refuse to contribute a kidney to a child with an ascertainable need.  I suppose the arguments against this is the policy against violating the parents rights to their body, but isn’t a balancing test appropriate?  Again, like in so many instances in the area of family law, this question leads us to the ultimate question: how far should the law go in legislating morality?


“Should a Parent Be Required To Donate a Kidney to a Child Who Needs a Life-Saving Transplant?”
A commenter asked this as a rhetorical question, suggesting, I think, that the answer must obviously be “no.” But I don’t see why, assuming that we’re talking about a minor child of the parent. Parents are rightly seen as having duties to their children. These include the duties to work to support the child for 18 years (more controversially, that’s extended even beyond 18 years in many child support decisions, but for now I set that aside); to care for the child; to bear a post-viability fetus, at least absent some substantial threat to the mother’s life or health; and more.

Why wouldn’t this also extend to the obligation to provide a life-saving transplant, at least when the risk is as low (not zero, but very low) as it is for kidney transplants? You bring a child into the world, and you incur major obligations to it; why shouldn’t this be one of them?

Now I don’t ask these questions as rhetorical ones, since it’s possible that some distinctions can be drawn (or even that the existing obligations on parents are excessive, though I’m skeptical about that). Perhaps there is a dispositive difference between providing an organ and having to work for 18 years to support someone. (I agree there’s a difference, even an important one, but it’s just not clear to me that it should lead to a difference in result.) Perhaps there is something dispositively different between having to give a kidney forever, and having to provide one’s womb for several months; or perhaps women shouldn’t have to bear fetuses even post-viability; or perhaps women only have to bear fetuses post-viability because they knew of this obligation early on, and had an opportunity to avoid this by a pre-viability abortion. I haven’t thought about the matter deeply enough to have a well-worked out response to all these things.

But my intuition is that a legal duty to provide a kidney, given the very low risk that it involves, is well within the range of burdens that parents may rightly be required to bear; and at the very least we can’t just categorically exclude that possibility. I’d love to hear what others have to say.

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Parent Support?

Old_coupleAs our society ages, should we explore the notion of parent support? Nobody questions mandatory child support (well a few perhaps), but does it make sense to compel senior support? Do we owe anything to our parents if they are aged and economically insecure?

One could argue that families have a duty to care for their own. Therefore, assuming a child has some ability to support a parent–and that parent has unmet financial needs, we should mandate contribution for their care. After all, that same parent may have been likewise compelled to support that child at some point in the past. The economic obligations should be reciprocal.

But does a child owe anything to a parent? (Probably some more than others!)  And if so, should the child’s recognition of a parent’s contributions be recognized, or compelled, through court ordered remuneration?

Perhaps this question becomes more timely as social security becomes overburdened, pension funds are failing and recent economic events have shaken our sense of economic security. Should the state’s recognition of a parent’s financial responsibilities to a child go both ways? Let’s start the debate.

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The Parenting Trap

Divorce is a life event that invites many people to re-evaluate their lives.  During our day to day lives, we often lose sight of our priorities, instead questing  for professional or economic  success at the expense of meaningful relationships. And when people ignore these relationships in favor of external rewards, family breakup often follows. This notion is no great insight but a tragic reality in our “go go” culture. What Lex familia finds interesting, however, is the court’s unwillingness to allow people to reprioritze and reconsider these relationships after the breakup. Apparently, there are no second chances in family court.

Consider this. A succesful professional regularly works a 60 hour week, both because he is a workaholic and to maintain the family standard of living. He never attends his children’s school or extracurricular events.  As a result, he  knows very little about his children and relies on his wife for periodic updates.  While his career ascends, his relationships with his children never develops. Then comes the divorce…and the hard charger is jolted into a focus on the importance of his children. He realizes that he has been going down the wrong road and now wants to change course. However, when he decides to reduce his hours to a more reasonable 40-hour week, thus reducing his income by 30%, he is accused of intentionally reducing his income to avoid paying child support.

The problem that confronts family court judges is the  inability to discern the well motived reduction versus the dead- beat looking for a way to beat his ex-wife out of support. Our experience is that courts will rarely, if ever, allow a non-custodial parent to argue that he should be entitled to cut back on work (and thus his income) so that he can spend more time with the children.  This is the trap that confronts many parents. Families disintegrate because of inattention. Divorce follows. People take stock and re-evaluate priorities, realizing the importance of the relationships. However, when the pursuit of relationships costs the family in terms of reduced income, it is effectively denied by courts refusal to recognize the reduced income as legitimate. Thus the support-paying parent may cut back on work, but will likely pay support based upon his former higher income. This requires him to finance the rebuilding of the relationship. One could argue that this is fair since he created the breakdown in the first place. However, in some cases the excess work is due to economic necessity to maintain an extravagant lifestyle. Should that person be “punished” and forced to work excessive hours to maintain the former status quo, at the cost of continued neglect of his children? Lex Familia thinks not.

One of the truths of divorce is that everything changes. Many people cannot accept this fact and expect that because “it is his fault, ” there should be no disruption in the family’s standard of living. The truth is that there is always plenty of blame to go around and things must necessarily change. Courts need to sensitize themselves to good faith attempts of support-paying parents to rehabilitate their relationships, even if it means reduced income. While Lex Familia is not advocating that parents quit their jobs to spend more time with their children, we also cannot tolerate courts denying a second chance to well-meaning parents.  We all sometimes get trapped in our pursuit of “things” without recognizing the costs. Redemption too has a price. 

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Filed under child support, divorce, Parenting