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Change in emancipation law brings uncertainty

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The Indiana General Assembly’s passage of legislation lowering the emancipation age from 21 to 19 has attorneys questioning if children could be treated differently by the courts depending on whether or not their parents were ever married.

Under the old paternity and divorce statutes, children in either situation could petition for educational support up to their 21st birthday. But under amendments to those statutes passed in Senate Enrolled Act 18, which became effective July 1, the age to seek college support is now 19. There is a loophole, but it only covers children who are the subject of paternity orders.

mckinnon McKinnon

Consequently, attorneys are debating whether the Legislature meant for the two statutes to be different or if the governing body intended for the provisions to be applied equally. Both sides agree that absent any adjustment by the General Assembly, the question will eventually arrive before Indiana’s appellate courts.

Differing interpretations

Patricia McKinnon is not sure if the amended language in the paternity statute also applies to the divorce statute. As a certified family law specialist through the family law certification board, an independent certification board with the Indiana State Bar Association, she handles many child support cases.

What the Legislature intended is unclear, McKinnon said. So, she is now advising all her clients that if there is any chance their children will be going to college after they turn 19, they should get an educational support order before they are emancipated.

Prior to becoming emancipated, the statutes do allow children to petition for the non-custodial parent to help pay post-secondary education costs.

In the amended paternity statute, minors who had a child support order issued before July 1, 2012, will have until they are 21 to file for college support. Even children who are currently very young would qualify for this loophole. For those covered by a child support order issued after June 30, 2012, they must petition for education support by the time they turn 19.

No corresponding language about this exception is included in the divorce statute.

David Morris, senior deputy prosecuting attorney in the child support division of the Marion County Prosecutor’s Office, explained in an email that appellate decisions have frequently applied the divorce statute to emancipation in paternity cases, see Paternity of P.W.J., 846 N.E.2d 752 (Ind.Ct.App. 2006), affirmed and clarified on rehearing, 850 N.E.2d 1024 (Ind.Ct.App. 2006). This had been done, in part, because only the divorce statute defines emancipation.

However, whether the Court of Appeals or the Supreme Court read the two statutes in pari materia regarding educational orders remains to be seen, he wrote. “There are sound legal principles both justifying and rejecting the two statutes’ facially disparate treatment.”

Richard Mann, also a certified family law specialist, argues the statutes should be read literally.

The Legislature was aware of the difference between the paternity and divorce statutes, he said. Elected officials possibly meant to treat children who are the subject of dissolution actions differently.

Thereby, if children of divorce do not file a petition for educational support before their 19th birthday, despite when their child support orders were issued, then, Mann said, they are out of luck.

Michael Cheerva, partner at Avery & Cheerva LLP, maintained that not applying the loophole equally to paternity and divorce cases would open a Pandora’s Box.

He believes the General Assembly intended to treat paternity and divorce cases in a like manner. In fact, the language will be applied across both statutes even if the Legislature does not clarify the statute because of equal protection concerns and caselaw that treats children in paternity cases and divorce cases the same.

“I don’t think the Legislature’s failure to match the divorce statute to the paternity statute is fatal,” Cheerva said.

The author of the bill, Sen. Brent Steele, R-Bedford, said he noticed the discrepancy between the statutes when the bill returned from the House of Representatives. He tried to fix the language but House Democrats, “mad about various things,” blocked his effort.

“Did it make sense? No,” Steele wrote in an email discussing the Democrats’ action. “Did it create an imperfect bill? Yes.”

For the upcoming General Assembly session, Steele, who is also an attorney, has requested his staff research whether combining the various sections pertaining to child support into one unified section would make the provisions clearer. He maintained if the research supports his view that having a single section will bring clarity, including to the language issue, he will file a bill to combine the sections.

Cramming

mann Mann

While attorneys wrestle with language differences in the two statutes, they do agree non-custodial parents could be paying for a lot more “educational support.” Specifically with child support ending at 19, attorneys expect to see an increase in the number of educational support petitions as more families will try to get child support payments continued by telling the court the money is for college.

Traditionally, Cheerva said, the courts have considered college expenses to be limited to tuition, room and board, books and fees. However, the Supreme Court guidelines on what constitutes educational support are broad and include such things as health insurance, car insurance, clothing, incidentals and entertainment. That will likely inspire some cramming of child support into educational support.

“As this (emancipation) statute takes effect and winds its way through the courts, I suspect a lot of cases will test how much child support we can squeeze into educational support,” Cheerva said.

On this matter, Cheerva takes a literal reading. The Legislature specifically provided for post-secondary educational support to be separate from child support, and the Supreme Court has issued guidelines that define college expenses very expansively.

“Who are we to second guess the Legislature and the Supreme Court?” he asked. “They give us the rules and we use them.”

Steele agrees that attorneys will try to get more costs covered under educational support orders but he warned them to be careful. If lawyers keep pushing, elected officials will hear the complaints from constituents and end all provisions for educational support.

“Lawyers and practicing family lawyers ought to understand, college expenses beyond the 12th grade are hanging by a thread in the Indiana Legislature,” Steele said. “Tons of legislators are happy to say you don’t get any college expenses.”

Prior to the emancipation law taking effect on July 1, the Court of Appeals did address the issue of educational support in Sexton v. Sexton, 34A02-1111-DR-1059.

Writing for the majority, Judge Nancy Vaidik held that Public Law 111-2012 will still enable a child to seek help with college expenses although the age to file for such support has been lowered to 19.

However, she pointed out, since designating support as “educational” was often not done prior to the enactment of Public Law 111-2012, “we anticipate that many support orders for college-age students may not specifically refer to the support as educational, although in reality it is. Trial courts must determine on a case-by-case basis whether support is in fact educational support.”•
 

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  • Emancipation law - educational expenses
    The way I understand this, children of paternity have more rights then of divorced children? Also, to set the record straight, not all divorced mommys "gets a bunch of extras and tax breaks....all the while having the state pay her insurance and housing...she is not held accountable for her share of supporting the child...the taxpayers are covering her share" And who said the divorced mom does not have to help pay college expenses? Yes, if you are married then as married parents get to decide if they wish to pay for their child's college expenses but you lose that decision when you get divorced. I would like to know what politician thinks that once a child turns 19 years old that they no longer need to eat! It is disturbing to me that any parent, mother or father, does not want to help their children get their college education!
  • Emancipation vs tax
    My ex emancipated my daughter, pays very little of the college expenses but yet still states he should get to claim her for taxes?? How does an emancipation ruling affect the child's right to declare themselves.
  • Not Right
    How is it that everyone feels sorry for the "poor little divorced kids"? They have it made! Mommy can collect child support, and then just because she is a single mom...she gets a bunch of extras and tax breaks....all the while having the state pay her insurance and housing...she is not held accountable for her share of supporting the child...the taxpayers are covering her share..... but the father has to work and pay his support or go to jail... College expenses...mommy does not have to pay for her share because she is a single parent...but the father does? Give me a break! I get tired of seeing "non custodial this and non custodial that!".....it is both parents responsibility I also feel that our government is providing a disgrace service for children of intact marriages.....if you are married, you and your spouse make the decision on if you will contribute any or what amount for college.. It is a double standard!!!!

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    1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

    2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

    3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

    4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

    5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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