Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Is My 21 Year Old Child Emancipated If They No Longer Live With Either Parent?

Not necessarily.  A child support attorney must demonstrate to a judge of the Family Part, Superior Court of New Jersey that the child has, “moved beyond the sphere of influence” of either of parent.  A New Jersey Family Court, in a recently released case, found that a child who was living with a third-party who supported her, had withdrawn from her parents’ care and supervision, was working and going to school periodically was indeed emancipated.  Thus, child support was terminated. Following, please find this attorney’s analysis of this case.

In Llewelyn v. Shewchuk, daughter, Adrianna Llewelyn, appealed from an order of The Superior Court of New Jersey, Family Part, Camden County that granted her father, James Shewchuk’s motion to terminate child support. James’s motion was based on the fact that his daughter was now emancipated. 

Interestingly, reaching the age of eighteen creates only a “prima facie” rather than a “conclusive” proof of emancipation. “Prima facie” is a Latin term that literally means “on its face.” It means a fact is presumed to be true unless it is disproved. Prima facie proof is based on first impression, and accepted as correct until proved otherwise. For most civil actions, the person who brings forth the claim must present a prima facie case to avoid dismissal. The same person must produce enough evidence on all elements of the claim to support the claim and shift the burden of evidence production to the other party. If this person fails to make a prima facie case, the opposing side may move for dismissal or a request a favorable verdict without presenting any evidence to rebut whatever evidence the plaintiff has presented. This is because the burden of persuading a judge or jury always rests with the plaintiff.

 On the other hand, “conclusive” proof is evidence that may not be disputed and must be accepted by a court as a definitive proof of fact. Conclusive proof or evidence puts an end to doubt, question, or uncertainty. It is decisive. 

Adrianna argued that she was not legally emancipated because she had not yet moved past her parent’s sphere of responsibility and influence. Conversely, James argued that she was emancipated due to her own voluntary actions. The New Jersey Appellate Division found that due to her actions of leaving her mothers’ home to live with her birth father at the age of 20, leaving her parents control and supervision, getting a part time job, and entering into a dependent financial relationship with her birth father and his wife, she failed to rebut the presumption that she was emancipated.

Adrianna was born in 1992 to Lisa Llewelyn and her biological father. In August 1994 her mother married James Shewchuk, and he consequently adopted Adrianna. The couple also had another child together while they were married. When they divorced in 2002, they shared joint custody of both kids. Lisa was the parent of primary residence, and James paid her child support. He filed a motion to have Adrianna declared emancipated in April 2013. His motion was based on the facts that Adrianna moved out of her mother’s home and moved in with her biological father, she was no longer attending school even though she graduated high school in 2011, and was working part-time.

Adrianna opposed the motion and filed two certifications against it. While she did admit she had moved out of her mother’s house to live with her birth father, she claimed that she started studying full-time at a local community college in the summer of 2011. She also admitted that she was working at a doughnut shop part-time, and earned $ 7.75 an hour. She argued that these facts proved that she was not emancipated, because they showed that she could not live independently or support herself. 

Oral argument for the motion was held on August 23, 2013. The Family Part court relied upon the 1997 case of Filippone v. Lee, and held that Adrianna was emancipated because she left her mother’s house willingly, and was now being supported by someone else. Therefore, the court concluded that she had voluntarily “moved beyond the sphere of influence and responsibility exercised by her parents,” and was thus now independent from them. Adrianna appealed the decision. 

The New Jersey Appellate Division started its opinion by stating that every child has a right to support from his or her parents, and children with divorced parents have a right to be supported according to the standard of living they were used to when their parents were still together. It is a fundamental principle in American society that parents have a duty to support their kids until they are emancipated. This duty exists whether or not the child lives with both, one, or neither parent. This principle is enumerated in our country’s common law, and statutory law. Furthermore, child support is the child’s right, not the custodial parents. As such, child support is enforceable both by the custodial parent, and the child. 

A finding of emancipation is a legal notion, and occurs when the dependent relationship between the child and parent ends. This does not happen automatically, and does not occur at any specific age. When the facts support a finding of emancipation, the parent gives up his or her custody rights, and no longer obligation of support. Still, a right to support is not terminated simply because both parents want the child to be declared emancipated. 

A fact sensitive inquiry is required to conclusively determine whether a child is emancipated, and no longer has any right to parental support. The essential question is whether the child had passed “beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.” In other words, the question that needs to be answered is if the child is independent and responsible enough to make his or her own decisions and take care of his or herself. To answer this question consideration must be given to the circumstances of the child, including but not limited to his or her needs, interests, independent resources, the family’s reasonable expectations, and the parties’ financial ability. 

A determination of emancipation generally requires a hearing, particularly when there is a genuine dispute of material fact. After reviewing the record, however, the New Jersey Appellate Division determined that this particular case did not require a plenary hearing because there was no genuine dispute of material fact. Both father and daughter agreed that, Adrianna moved out of the mother’s house willingly so that she could live with her birth father, studied at community college part time, was being supported by her birth father, and worked. 

The New Jersey Appellate Division noted that she willingly relied on the support she received from her birth father and his wife, who were under no legal obligation to do so. As such the appellate panel concluded that she voluntarily left her parent’s control and supervision, she worked part-time, and arranged for support from the financial relationship she had with her birth father and his wife. Therefore, the New Jersey Appellate Division held that the Family Part of Camden County was correct in considering the specific circumstances of the case and finding that Adrianna emancipated herself, and the motion judge correctly applied the law to the facts. 

My office stands ready to assist you and your family with any child support issues.