ILNews

Change in emancipation law brings uncertainty

Back to TopCommentsE-mailPrint
Indiana Lawyer Focus

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.”•
 

ADVERTISEMENT

  • 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!!!!

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

ADVERTISEMENT