Custody and Child Support Beyond the Age of 18
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How long your responsibilities (and rights) to the custody and financial support of your children will depend on the statute that you are looking at. The rules are different for the child custody, child support, and dependency (aka child services) statutes.
A recent Superior Court appeal decision highlights the importance of a child’s age during a custody matter. In M.B.S. v. W.E., 2020 PA Super 118, mom filed an appeal of a trial court opinion that gave sole physical custody of the couple’s then 16-year-old child with mental impairments to father. While the appellate court ultimately found that the trial court had erred in granting father’s reconsideration without a hearing or finding on the custody factors, it noted that due to child turning 18 in the same month it was making its decision would render the issue moot. It is also worth nothing that the child would be in the 10th grade and still in high school. There could be no relief at the lower court if the case were to be remanded back to the trial court because the child would be 18 and the court would not have subject matter jurisdiction of the case.
This opinion allows us to discuss what is a child or an unemancipated individual and how this is different under the custody, support, and juvenile statutes.
The PA child custody court defines a child as an unemancipated child younger than 18. This is contrast to the PA child support statute when it considers liability for support. PA C.S. Section 4321(2) provides that parents are liable for the support of their children who are uemancipated and 18 years of age or younger. Section (3) also provides that parents may be liable for the support of their children who are 18 years of age or older.
Generally, the courts have held that a duty of support continues until a child reaches the age of 18 or graduates from high school, whichever occurs later. There are exceptions this rule. While the statutes do not provide a definition of emancipation, caselaw does indicate that circumstances to be considered include “the child’s age, marital status, ability to support herself or himself, and the desire to live independently of his or her parents.”’ Nicholason v. Follwiler, 735 A.2d 1275 (Pa. Super. 1999). Emancipation is a question of fact. Therefore, a parent could be responsible for support of their adult children. While the court may order ongoing support for a child who has physical or mental impairments as it did Geiger v. Rouse, 715 A.2d 454 (Pa. Super. 1998), the court will not order a finding of custody. The parents must seek other remedies when it comes to “custody” (such as guardianship).
However, contrast this with a child who has been adjudicated dependent by State (in the control of child protective services). In these situations, a child can also be an individual who is under the age of 21 who committed an act of delinquency before reaching the age of 18, is under the age of 21 and was adjudicated dependent before reaching the age of 18 years, who has requested the court to retain jurisdiction and who remains under the jurisdiction of the court as a dependent child because the court has determined that the child is:
(i) completing secondary education or an equivalent credential; (ii) enrolled in an institution which provides post secondary or vocational education; (iii) participating in a program actively designed to promote or remove barriers to employment; employed for at least 80 hours per month; or incapable of doing any of the above; or (iv) due to a medical or behavioral health condition, which is supported by regularly updated information in the permanency plan of the child.
Finally, with regard to post-secondary education, courts have recognized the obligation of a parent to continue to the college education of a child as indicated under a marital settlement agreement. Although 23 Pa C.S. Section 4327 provided that a parent whether married, divorced, or unmarried may be responsible for the education of the child. The PA Supreme Court found the statute to be unconstitutional in Curtis v. Kline 542 Pa. 249, 666 A. 2d (1995), The Supreme Court held that Section 4327 violates the equal protection clause of the Fourteenth Amendment and is thus unconstitutional. PA Legislature has not yet repealed the section.
It is important to note that each statute has its own definitions which often are further defined or clarified by case law. An understanding of those definitions, clarifications, and rule applications are essential to planning your strategy and getting an appropriate result.