CHILDREN/SUPPORT: Provides for the extension of child support past the age of majority

To enact Civil Code Article 230(B)(3) and R.S. 9:315.6(3) and 315.22(E), relative to child support; to provide for continued support for a major child in certain higher education programs; and to provide for related matters.

Be it enacted by the Legislature of Louisiana: Section 1. Civil Code Article 230(B)(3) is hereby enacted to read as follows: 6

(3) It may include the education, when the person to whom the alimony is 11 due is a major who is a full-time student in good standing in any professional or 12 technical training program designed to prepare the child for gainful employment or 13 in an accredited undergraduate college or university, has not attained the age of 14 twenty-three, and is dependent upon either parent. 15 Section 2. R.S. 9:315.6(3) and 315.22(E) are hereby enacted to read as follows: 16

§315.6. Other extraordinary expenses; addition to basic obligation 17 By agreement of the parties or order of the court, the following expenses 18 incurred on behalf of the child may be added to the basic child support obligation: 19

(3) The cost of tuition, textbooks, and other supplies in attending a 1 professional or technical training program designed to fit the child for gainful 2 employment or an accredited undergraduate college or university, if the child is 3 entitled to continued support pursuant to the provisions of R.S. 9:315.22(E). 4

§315.22. Termination of child support upon majority or emancipation; exceptions 6

E.(1) By agreement of the parties or order of the court, an award of child 8 support may continue for any unmarried child who attains the age of majority or for 9 a child who is emancipated, if the child has not attained the age of twenty-three, is 10 principally dependent upon either parent for maintenance, and is a full-time student 11 in good standing in a professional or technical training program designed to prepare 12 the child for gainful employment or in an accredited undergraduate college or 13 university. 14

(2) Upon motion of the primary domiciliary parent or the major or 15 emancipated child seeking continued child support payments, the court shall consider 16 all of the following in determining whether or not to order the continuance of 17 support: 18

(c) The financial resources available to the child, including but not limited 21 to student loans and grants, scholarships, and other income of the child. 22

(3)(a) If the court orders the continuation of child support upon the motion 23 of the primary domiciliary parent, the provisions of the guidelines for determination 24 of child support, R.S. 9:315 et seq., shall continue to apply. 25

(b) If the court orders the continuation of child support upon the motion of 26 the major or emancipated child, the provisions of the guidelines for determination 27 of child support, R.S. 9:315 et seq., shall not apply. In determining the amount of 28 child support owed to the child, the court shall consider the means of the obligor and 29

needs of the child, including the cost of tuition, textbooks, other supplies, room and 1 board, meals, and medical care. The court may also consider the means of the other 2 parent as a source of income to the child. 3

The digest printed below was prepared by House Legislative Services. It constitutes no part of the legislative instrument.

Present law (C.C. Art. 230) provides that the alimentary obligation of a parent includes the education of his minor child or a major child who is a full-time student in good standing in a secondary school (high school) and who has not attained the age of 19.

Present law (R.S. 9:315.22(C)) also provides that child support terminates when the child reaches 18 years of age, but it may be continued in cases wherein the child is a full-time student, in good standing, in high school, has not attained the age of 19, and is dependent upon either parent.

Proposed law retains present law but provides an additional ground for continuation of the alimentary obligation and child support in cases wherein the child has not attained the age of 23, is dependent upon a parent, and is a full-time student in good standing enrolled in a professional or technical training program designed to fit the child for gainful employment or an undergraduate college or university. Proposed law provides that by agreement of the parties or order of the court, an award of child support may continue to exist. Upon motion of the domiciliary parent or the major child, the court shall consider the responding parent's financial ability to provide necessary funds, the child's scholastic ability, and the financial resources available to the child in determining whether or not to order the continuance of support.

Proposed law provides that if the court orders the continuation of child support upon the motion of the primary domiciliary parent, the provisions of the child support guidelines apply.

Proposed law provides that if the court orders the continuation of child support upon the motion of the major child, the provisions of the child support guidelines do not apply, and to determine the amount owed, the court must consider the means of the obligor and the needs of the child, including the cost of tuition, textbooks, other supplies, room and board, meals, and medical care. Provides that the court may also consider the means of the other parent as a source of income to the child.

There are reportedly (http://divorcesupport.about.com/od/childsupportresources/a/childsupportcol_2.htm)
17 states that already have similar legislation.

They are:

1 * Alabama - Courts may require parents to provide post-minority support for child’s college education. Bayliss v. Bayliss, 550 So. 2d 1038 (1989); Ala. Code § 30-3-1.
2 * Colorado - Colo. Rev. Stat. § 14-10-115(1.5)(b) provides that for orders entered prior to July 1, 1997, support may be ordered. In re Marriage of Robb, 934 P.2d 927 (Colo. Ct. App. 1997).
3 * District of Columbia - D.C. Code § 16-916 provides that minor children are entitled to support; the age of majority is 21.
4 * Hawaii - Haw. Rev. Stat. § 580-47 and Haw. C.S.G. provide that courts may order support for adult children in college.
5 * Illinois - 750 Ill. Law. Con. Stat. § 5/513 provides that court may make provisions for educational expenses of child, whether or minor or majority age.
6 * Indiana - Ind. Code § 31-1-11.5-12(b)(1) provides that a child support order may include sums for institution of higher learning.
7 * Iowa - Iowa Code § 598.1(2) provides that support means an obligation which may include support for a child between 18 and 21.
8 # Massachusetts - Mass. Gen. Laws ch. 208, § 28 allows court to render support order for child between ages 18 and 21 who is dependent on parent for support.
9 # Mississippi - Age of majority is 21; college support may be ordered. Stokes v. Martin, 596 So. 2d 879 (Miss. 1992).
10 # Missouri - Mo. R. Civ. Pro. 88.01; Mo. Rev. Stat. § 452.240.5 provides that support obligation may be extended to age 22 for college.
11 # North Dakota - N.D. Cent. Code § 14-09-08 allows court to order college expenses. Donarski v. Donarski, 581 N.W.2d 130 (N.D. 1998)
12 # New Hampshire - Gnirk v. Gnirk, 134 N.H. 199, 589 A.2d 1008 (1991) held that support may be awarded for college expenses.
13 # New Jersey - Newburgh v. Newburgh, 88 N.J. 529, 443 A.2d 1031 (1982) held that court has jurisdiction to entertain motion to modify original judgment of divorce to award payment of college expenses.
14 # New York - N.Y. Dom. Rel. Law § 240(1-b)(c)(7) provides that court may award educational expenses for college to age 21.
15 # Oregon - Or. Rev. Stat. § 107.275(1)(e) authorizes court to order parent to pay support for child attending school to age 21. In re Marriage of Crocker, 157 Or. App. 651 (1998)
16 # South Carolina - Court may order college support. Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979)
17 # Washington – Wash. Rev. Code § 26.19.090 provides that the court may, in its discretion, award college support.

The rest are Anti’s are:

* Alaska - Courts may not require parents to pay for college. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).
* Arizona - No statute or case law holding parents to duty. Solomon v. Findley, 167 Ariz. 409. 808 P.2d 294 (1991).
* Arkansas - No statute or case law holding parents to duty. Solomon v. Findley, 167 Ariz. 409. 808 P.2d 294 (1991).
* California - No statute or case law holding parent to duty.
* Connecticut - No statute or case law holding parent to duty.
* Delaware - No statute or case law holding parent to duty.
* Florida - No statute or case law holding parent to duty.
* Georgia – No statute or case law holding parent to duty.
* Idaho - No statute or case law holding parent to duty.
* Kansas - No statute or case law holding parent to duty.
* Kentucky - No statute or case law holding parent to duty. Reed v. Reed, 547 S.W.2d 4 (Ky. 1970).
# Louisiana - No statute or case law holding parent to duty.
# Maine - No statute or case law holding parent to duty.
# Maryland - No statute or case law holding parent to duty.
# Michigan - No statute or case law holding parent to duty.
# Minnesota - No statute or case law holding parent to duty.
# Montana - No statute or case law holding parent to duty.
# Nebraska - No statute or case law holding parent to duty.
# Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994).
# Nevada - No statute or case law holding parent to duty.
# New Mexico - No statute or case law holding parent to duty.
# North Carolina - No statute or case law holding parent to duty.

# Ohio - No statute or case law holding parent to duty.
# Oklahoma - No statute or case law holding parent to duty.
# Pennsylvania - No authority to award college support. Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995)
# Rhode Island - No statute or case law holding parent to duty.
# South Dakota - No statute or case law holding parent to duty.
# Tennessee - No statute or case law holding parent to duty.
# Texas - No statute or case law holding parent to duty.
# Utah - Utah Code Ann. § 15-2-1 provides that in divorce actions, courts may order support to age 21.
# Vermont - No statute or case law holding parent to duty.
# Virginia - No statute or case law holding parent to duty.
# West Virginia - No statute or case law holding parent to duty.
# Wisconsin - No statute or case law holding parent to duty.
# Wyoming - No statute or case law holding parent to
duty.

Who is the U.S. Commission on Interstate Child Support?

A summary from this site: http://www.ncsl.org/programs/cyf/legis399.htm

NCSL LegisBrief
Briefing Papers On the Important Issues of the Day
Child Support and Education Expenses Past the Age of 18
By Stephanie Walton

Quote:

Child Support for Higher Education. The U.S. Commission on Interstate Child Support recommends that state guidelines direct the courts to award child support up to age 22 if the child is enrolled in good standing at a college or vocational school. This approach grants the courts discretion in individual cases, while setting a general standard that parents can be expected to pay for higher education.

Seventeen states make provisions specifically for higher education within their guidelines or in case law. Hawaii extends support until the age of 23 if the child is enrolled in an accredited higher education institution, and Washington’s guidelines permit the court to order college support at the court’s discretion. South Carolina’s guidelines contain a specific list of factors for courts to consider in awarding support while a child attends college. The family court may order support for children over 18 in “exceptional circumstances,” and where the characteristics of the child indicate that: 1) she will benefit from college; 2) she demonstrates the ability to do well or make satisfactory grades; 3) she cannot otherwise go to school; and 4) the parent can afford to help pay for the child’s education. In Colorado, courts may not order child support and payment for college at the same time. Colorado law allows the court to determine if it is appropriate for parents to contribute to the costs of higher education, and if so, the child support order must be terminated and both parents must be required to contribute.

Four states address higher education needs generally within their guidelines without specifying college support. In Florida, courts may require continued support if a child is “dependent,” but attendance in school does not automatically mean that a child is dependent. In Massachusetts, support can be extended up to the age of 23 for a child enrolled in an “education program.” Massachusetts law also requires that children reside with the custodial parent until the age of 21 in order to receive support past the age of 18. Guidelines in the District of Columbia and Utah are ambiguous in their treatment of secondary or post-secondary schooling. The District of Columbia does not end support until the age of 21, and the courts have ruled that higher education may be included in orders until the age of 21. Utah guidelines state that in divorce actions, support may be ordered until the age of 21.

Twenty-seven states have not addressed child support for higher education in their statutory or case law. These states, however, do permit courts to enforce private agreements between the parents concerning educational expenses. In Alaska, the court ruled that the state statute does not give courts the power to require support for college expenses if the child is past the age of majority, but private contracts may be enforced.

Important Court Cases. Pennsylvania is the only state where the duty to provide college support has been found unconstitutional by the state supreme court. The Pennsylvania legislature enacted a statute in 1993 allowing courts to order that parents provide for higher education expenses if the parents are separated, divorced, unmarried or otherwise subject to an existing support obligation. In 1995, however, the Pennsylvania Supreme Court ruled that the statute violated the constitutional right to equal protection because under the law, divorced parents could be required to pay for a child’s college education while married ones could not.

Similar challenges in other states have been unsuccessful. For instance, in December 1998, the Oregon Court of Appeals overturned a lower court decision that the Oregon statute allowing courts to order college support was unconstitutional because it discriminated between divorced parents and married parents. The court of appeals reversed the decision, finding that there is a rational distinction between divorced parents and married parents. The court explained that “even if most divorced or separated parents could cooperate sufficiently to decide whether to support their children attending school. there will be instances in which children will not receive support from their parents to attend school precisely because the parents are divorced or separated, despite the fact that.it is in the children’s best interest for them to do so.”

Illustration for Child Support for College Expenses is not available online. Please contact the author for a copy or view the Adobe Acrobat version. Adobe Version
Selected References

Morgan, Laura W. Child Support Guidelines, 1998 Supplement. New York: Aspen Law and Business, 1998. “Termination of Child Support and Support Beyond Majority,” (table on NCSL’s Child Support Project Web site), http://www.ncsl.org/programs/cyf/educate.htm
Contacts for More Information

Stephanie Walton
NCSL-Denver
(303) 364-7700 x1552

In 1995, however, the Pennsylvania Supreme Court ruled that the statute violated

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