Custody and Child Support Beyond the Age of 18

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.  

When do child support payments end?

When do child support payments end?  Do I have to do anything once my child turns 18 to stop the payments?

Technically support orders do not terminate automatically and a person paying child support was required to file a petition to terminate a child support order once the child is emancipated.  Subdivision (e) of Rule 1910.19 was implemented to prevent overpayments and to give parties notice.  Now, within the six months before the child turns 18, the court will issue an emancipation inquiry and notice to the obligee and a copy to the obligor asking certain questions to see whether the order shall remain in effect after the child turns 18 or graduates from high school (whichever is later). If there is no response after 30 days, the domestic relations section can administratively modify or terminate an order.

If you are receiving child support, you should complete and return the inquiry especially if there is a reason that the child should continue to receive support beyond age 18 or graduating high school.  If you do not return the notice, the domestic relations section may modify or terminate the order without further proceedings.  If there are other children on the court order, there may be a conference.

Three reasons why child support may continue even after the child reaches 18:

1. The child has special needs.
2. There is an agreement between the parties that requires support beyond age 18 or after the child has graduated from high school.
3. There are arrears.

Arrears.  If the person paying child support owes arrears, the arrears continue to accrue through the date of the termination.  The domestic relations section may continue to have child support deducted in the amount of the original order to cover the arrears.  In this situation, the arrears will be paid off faster.

If you object to paying support for your child beyond age 18 or their graduation from high school, you may request a hearing.

If you have questions about child support, contact us for a free telephone consultation.  You may also consult Pennsylvania Rule 1910.19.