The Arguments, Policies, and Legal Theories Pro and Con
While parents sometimes vehemently disagree about the amount of child support to be paid (received by the custodial parent) to maintain the lifestyle of the child(ren) post divorce, which is a controlling policy under the Child Support Guidelines, most would acknowledge each parent should pay some amount of support for their minor children.
This is the simple part, but nevertheless a well-known area of dispute in application (i.e., the amount of presumptive child support to be paid).
At Ciyou & Dixon, P.C., where we sometimes observe extraordinary disagreement and contentious litigation, usually on policy grounds (equal treatment with non-divorced parents), and long after child support has been an accepted financial obligation and paid by a parent, is when a divorced parent is asked to pay for college expenses. This can be a component of court-ordered support. Often this is a flashpoint and results in heated litigation.
In this blog post, we hope to provide you with the legal landscape or background, which is found in several statutes, guidelines, and caeslaw, to understand how Indiana trial courts view higher education expenses. More importantly, why they may order such as a type of child support, in what amounts, and the exception where there has been a repudiation of a parent by a child.
As noted, and a threshold matter, a (each) parent is clearly required to financially support his or her children, divorced or not, unless his or her parental rights are terminated, typically in conjunction with adoption by another party. This does not eliminate the legal duty to support a child, but transfers it to the adoptive parent(s). This is a very small percentage of total cases.
However, under Indiana law, there is no absolute legal duty on the part of a divorced parent to provide a contribution toward a child’s college education. But, there is ample and significant legal authority to authorize a domestic court to order parent(s) to pay toward college education for their adult children.
This comes from the policy that child support, and it corollary considerations, should approximate the non-divorce lifestyle of the children (by enforcing its approximation by a court order); this recognizes and embodies the expectation that most families would encourage children, with ability, to pursue a college education consistent with individual family values.
The various social and financial data support this broadly. Clearly college graduates have, on the whole, a much higher standard of living. Courts, who in some aspects stand in loco parentis, by their judges who are highly educated, certainly identify with these facts and the statistics on which they are based.
The legal “rub” is that married parents do not have the legal ability to force the other, nor does a child through one parent, to pay for a child’s higher education expenses. With divorced couples, this is not the case. If this is where you find yourself as a litigant, it is important to remember a college education expense order is not automatic.
To make this discretionary order, a domestic court must consider whether, and to what extent, the parents, if still married, would have contributed to the child’s college expenses. Although this takes diligence and significant effort on the part of the client to compile the facts of family custom and lifestyle, and attention to this legal nuance by counsel, the evidence may demonstrate a college contribution–or college itself--would not have been the case.
The parent seeking a college expense order bears the burden of proof. So to avoid a reckless approach, he or she must be aware of this evidentiary inquiry the court is to make. Thus, a parent who has a strong belief in college for the child(ren) should come to court armed with facts, and be prepared to demonstrate in the evidence, that had the parties remained married, the child(ren) to a reasonable certainty, would have attended college with parental contribution.
The Indiana Child Support Guidelines provides a significant amount of commentary about these considerations in making a college support order. This is a good companion read to this blog. Perhaps the most significant detail found in this commentary is that courts should generally cap the amount of college award it (may) orders at the cost of a State-supported college or university. In addition, there is an expectation the child invests in his or her education by some contribution, be it financial aid, scholarship, or part-time work.
In a small number of cases, there is a stronger argument a parent, typically the non-custodial parent, may lodge in response to a request for college education expenses. This is where a child, who now seeks college contribution (typically by the custodial parent), has repudiated the relationship with the other parent. In some situations, this will obviate a parent’s obligation to pay college expenses.
The reason for this is a judicial recognition of the maturation process; at some point in time a child has to accept adult-responsibility. Stated differently, by college age, children of divorced parents must be expected to begin to recognize and come to terms with the reality of baggage they may carry from their parents divorce.
In a recent Indiana Court of Appeals case, the Court succinctly (re)stated how the child-repudiation-of-a-parent policy plays out in legal application and life:
Adult children who willfully abandon a parent must be deemed to have run the risk that such a parent may not be willing to underwrite their educational pursuit. Such children, when faced with the answer “no” to their requests, may decide to seek the funds elsewhere; some may decide that the time is ripe for reconciliation. They will not, in any event, be allowed to enlist the aid of the court in compelling that parent to support their educational efforts unless and until they demonstrate a minimum amount of respect and consideration for the parent.
Nevertheless, it is important to note and understand not all insults and juvenile acts and omissions by a child reach the level of repudiation. Actually, few do. Repudiation of a parent exists when there is a complete refusal to participate in a relationship with his or her parent. It is only where this is manifest in the evidence that this exception or defense of sorts, to contributing to college education expenses applies.
This frames the complicated set of considerations with a divorced parent’s payment of college expenses under the legal umbrella of child support. Few cases are black and white. What is your position? How do the facts correspond with the noted (of many) legal considerations set out in this blog? Would a judge agree?
As child support advocates, we at Ciyou & Dixon, P.C. hope you find this blog post useful if this is the matter at hand in your life. Education, along with a caring and skilled attorney, is the way to make your best argument for or against college contribution. If this blog post has helped, it has met its goal. Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou.
This is broadly defined as the assumption of a legal obligation for a child without actually being a natural parent.
Lechien v. Wren, 950 N.E.2d 838, 842-843 (Ind.Ct.App.2011).