Pursuant to a request dated May 29, 2001 by the Co-Chairs and Vice-Chairs of the Judiciary Committee for a study of Post Majority Child Support, the Law Revision Commission appointed a postmajority educational support committee to explore "the issue of requiring parents of an unmarried child who is pursuing a post secondary education and has reached the age of majority to maintain the child according to their respective abilities if the child is in need of maintenance." In particular the request asked that the Commission "look at the conditions or circumstances under which such an obligation should be imposed. One of the issues we would like explored is the effect of divorce and lack of child support on a child’s educational attainment."

In furtherance of that request, the postmajority educational support committee (see membership list Attachment 2) held a number of meetings, consulted with interested persons, reviewed substantial staff research as to the analogous statutes and case law in other states, and reviewed related commentaries. A collection of relevant reading materials is available on request. The committee report was submitted to the Law Revision Commission, approved at the Commission’s November 2001 meeting, and is subsumed herein.

The committee found that a proposal that provides authority for the entering of postmajority educational support orders reflects a viable public policy worthy of the Judiciary Committee’s careful deliberations. As is noted in the following report, such a policy initiative has been successfully enacted in a number of other states, appears to be legal under the dominant case law, and would appear to further legitimate public interest in the education and well-being of our children. Interested persons at the committee meetings predominantly support the concept. However, as further noted, such a policy also involves state intrusion into an area traditionally the province of the family, in particular intruding on the parental discretion of divorced or single parents with respect to their adult children while respecting the same interests in the context of an intact family. Given the substantial assets involved and the ramifications for families, the difficult balancing of these interests is properly the role of the legislature itself. This report is intended to provide the background necessary to make that evaluation and to provide appropriate draft language should the legislature determine to enact such a proposal. A draft statute, Attachment 1, is enclosed.

With the limited statutory exceptions noted below, Connecticut law requires parental support of a child to the age of eighteen and not beyond. The law, however, does not preclude enforceable agreements for postmajority support between the parties. "The obligation of a parent to support a child terminates when the child attains the age of majority, which in this state, is eighteen. General Statutes section 1-1d; Kennedy v. Kennedy, 177 Conn. 47, 52, 411 A.2d 25 (1979); Sillman v. Sillman, 168 Conn. 144, 358 A.2d 150 (1975)." Cariseo v. Cariseo, 190 Conn. 141, 459 A. 2d 523 (1983).

Section 1-1d of the Connecticut General Statutes provides that "any person eighteen years of age or over shall be an adult for all purposes whatsoever and have the same legal capacity, rights, powers, privileges, duties, liabilities and responsibilities as persons [prior to October 1, 1972] had at twenty-one years of age, and ‘age of majority’ shall be deemed to be eighteen years." In short, in Connecticut, eighteen year olds are adults, legally emancipated, and responsible for their actions, including their debts. Section 46b-150 et seq. also sets out a process whereby a sixteen or seventeen year old or the youth’s parent or parents may seek emancipation of the youth, effectively conferring a form of quasi-adulthood before eighteen. One effect of a decree of emancipation, under section 46b-150d, is "(m) the parents shall be relieved of the obligation to support the minor…"

The various Connecticut statutes setting out support obligations speak in terms of support of the child. Subsection (a) of section 46b-84 states that "Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of the minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance." In the case of a child born out of wedlock, a paternity action may be brought and, under subsection (a)(1) of section 46b-171, "If the defendant is found to be the father of the child, the court or a family support magistrate shall order the defendant to stand charged with the support and maintenance of such child, with the assistance of the mother if such mother is financially able, as said court finds…to be reasonably commensurate with the financial ability of the defendant, and to pay a certain sum periodically until the child attains the age of eighteen years…" See also, for example, section 4a-12, defining "liable relative" as including "the father and mother of any such person under the age of eighteen years,…" Eighteen is also a primary benchmark for various financial assistance criteria. See, for example, section 17b-75.

However, Connecticut has relatively recently crossed the line of allowing an order of postmajority support for a child in two circumstances.

Section 46b-84(b), enacted by Public Act 94-61, allows child support orders to age nineteen to facilitate high school graduation. That provision states that "If there is an unmarried child of the marriage who has attained the age of eighteen, is a full-time high school student and resides with a parent, the parents shall maintain the child according to their respective abilities if the child is in need of maintenance until such time as such child completes the twelfth grade or attains the age of nineteen, whichever first occurs."

Section 46b-84(c), enacted by Public Act 97-321, allows postmajority support orders for children with certain physical or mental disabilities or retardation. That provision states that "The court may make appropriate orders of support of any child with mental retardation, as defined in section 1-1g, or a mental disability or physical disability, as defined in subdivision (15) of section 46a-51, who resides with a parent and is principally dependent upon such parent for maintenance until such child attains the age of twenty-one…"

Finally, it should be noted that consensual agreements between the parental parties to a dissolution for postmajority support of a child are enforceable pursuant to section 46b-66. That section states, in part, "If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-1d." That rule was revised in the 2001 legislative session by Public Act 01-135 to expressly provide that "Agreements providing for the care, education, maintenance or support of a child beyond the age of eighteen entered into on or after July 1, 2001, shall be modifiable to the same extent as any other provision of any order or decree in accordance with section 46a-86."

According to a 1999 compilation of the National Conference of State Legislatures (see Attachment C), twenty-nine states, Alaska, Arizona, Arkansas, California, Delaware, Florida, Idaho, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Vermont, Virginia, Wisconsin, and Wyoming, as well as Connecticut, terminate the right to child support at age 18 or, in some cases, at a later age, such as 19, to facilitate high school graduation, but do not allow court imposition of postmajority payments for college. In the remaining states, postmajority support for college may be awarded pursuant to a varied set of limitations either pursuant to court rule or by statute. Postmajority support is allowed by case law in Alabama, New Hampshire, New Jersey, and South Carolina. Statutes allow imposition of an award for postmajority college expenses in the remaining states of Colorado (but only on explicit termination of child support), Georgia (to 20), Hawaii, Illinois, Indiana, Iowa (to 21), Massachusetts (to 23), Missouri (to 22), Montana, New York (to 21), North Dakota, Oregon (to 21), Rhode Island (to 23), Utah (to 21), Washington, and West Virginia. In Mississippi, the age of majority is 21, allowing an order to that age as child support for a minor.

In those states where postmajority support for college expenses is allowed, the court is generally required to review a variety of factors prior to imposing the award, such as (1) the financial resources of the parents, (2) the financial resources of the child, (3) the child’s academic performance, (4) the standard of living or expectations raised for the child (evidence, for example, of college education of the parents and support of a sibling through college) prior to the divorce, and (5) other potentially relevant factors, which may include the relationship between the parent and child, the availability of other resources such as scholarships, grants, and loans, and other pressing commitments such as obligations to a second family.

The Judiciary Committee request came to the Commission in the context of H.B. 6126 as considered by the Judiciary Committee in the 2001 legislative session.

H. B. 6126, which in a substitute form was enacted as Public Act 01-135 to allow postmajority modification of agreements for postmajority support to age 22, was brought to public hearing by the Judiciary Committee in a form that authorized postmajority orders of college expenses as follows:

"(c) If there is an unmarried child of the marriage who is a full-time student at an institution of higher education, the parents shall maintain the child according to their respective abilities if the child is in need of maintenance until such time as such child attains the age of twenty-two. The provisions of this subsection shall apply only in cases where the decree of dissolution of marriage, legal separation or annulment is entered on or after the effective date of this act."

Testimony in favor of that bill was given to the Judiciary Committee by Attorney Shirley Pripstein, on behalf of legal services agencies; Sarah Oldham and Kate Haakonsen of the Family Law Section of the Connecticut Bar Association – Haakonsen asked that the bill apply also to children of unmarried parents; Elizabeth Spalding on behalf of the Connecticut National Organization for Women; and Leslie Brett, Executive Director of the Permanent Commission on the Status of Women. Stephen Ment, on behalf of the Judicial Branch, noted that the proposed bill would "result in a substantial caseload increase", require additional staff, and "necessitate additional funding for the Judicial Branch."

The Legislature considered these issues in prior sessions in the contexts of a variety of other bills. See for example 1994 House Bill 5618 (enacted in a more limited form as P.A. 94-61) and 1995 House Bill 6931 which, as raised, would have imposed requirements for parental support of post secondary school education.

Substantial case law and commentary address the policy considerations that underlie an award for postmajority educational support. As noted above, a selection of those readings is available on request. Our review of those readings suggests that the current split among jurisdictions as to whether to allow postmajority educational support generally reflects an awareness of the legitimate concerns and intractable problems with the various approaches.

While issues over the right to access to a college education are not new, the primary genesis of the current state of the law is rooted in two dynamics moving in opposite directions. As an outgrowth of the Vietnam War and the 1972 federal reduction of the voting age from 21 to 18, most states, including Connecticut, reduced the age of majority, and consequently the age for termination of parental responsibility for support, from 21 to 18. The reduction in voting age reflected legitimate ethical concerns arising from the drafting of young men under 21 to fight the nation’s battles without political representation. Those concerns, which were vehemently expressed by the anti-war movement, reflected, in fact, a strong national consensus, and were almost universally acted upon.

Concurrently, our economic and educational systems have increasingly delayed the entry of young people into the work force, demanding over time substantially more college accreditation for most middle class jobs, even as the availability of unskilled jobs in manufacturing and agriculture has dramatically decreased. Moreover, the cost of a college education, even adjusted for inflation, has ballooned substantially in the last decade.

The result has been a substantial gap between the time that our youth reach the age of majority, 18, and the date at which they reach sufficient educational attainment to be economically viable – at least in the light of social expectations – typically 22, after awarding of a bachelor’s degree, or older. That gap, generally, is either addressed through voluntary parental support, or not at all.

Parents, of course, are not unaware of the dilemmas. Even for married working couples, the burden of providing for the college education is substantial. Married parents can, and some do, deny their support. To date, at least, no strong argument has been made that parents of an intact family do not have a legal right to deny that support. Our political history has been one of recognizing the autonomy of the intact family to make its own judgments rather than to substitute a paternalistic judgment of the state, at least absent indicia of abuse or neglect.

Policy concerns arise, however, because the commentaries report that statistically, the child of the intact family has a somewhat better chance of receiving parental support for college than a child of divorce or born out of wedlock. A sample of those statistics set out in a Sara McLanahan essay, "Growing up with a Single Parent" which is available for the Commission office on request. The implications of those statistics should be considered carefully – they reflect matters of degree. The advantages enjoyed by the child of an intact family may reflect a variety of factors other than willingness of parents to provide support. However, even if not conclusive, they raise the specter that the marital status of a child’s parents may be unreasonably determinative of the child’s opportunities. Noncustodial parents, in particular, are reported – anecdotally - as often expressing unwillingness to do more than what is legally required. The lack of available support for higher education for the child of divorced parents also reflects the greater economic stresses on the divorced families - stresses arising, for example, from maintaining two households and the possibility of obligations to a new nuclear family. While a number of states, including Connecticut, will enforce a consensual separation agreement provision to provide postmajority support, the slight majority view has been to deny courts the authority to impose support orders post majority.

The various state laws and proposals that provide or that would provide for postmajority support seek to reverse or ameliorate that statistical bias. They typically build on the existing intervention by the state in divorce and support cases at the time that the state, of necessity, sets out the respective obligations of the parents, extending the parental obligations to include payment of postmajority education as appropriate in the circumstances.

Those laws are almost universally regarded to be well-intended efforts to address the problems confronting children without intact families. As noted above, the rule allowing postmajority support has now been extended to a significant minority of the jurisdictions. In states where the issue has been considered, only one state, Pennsylvania, has found such a law to be unconstitutional. (See Curtis v. Kline, 666 A.2d 265 (Pa. 1995).) Nonetheless, postmajority support laws continue to receive a mixed response.

It is clear from commentary and case law that legislatures and courts identify a rational and legitimate state interest in the imposition of postmajority support. The state has an interest in the educational attainments of its people, particularly given the high economic and social values of post secondary education. Notwithstanding the Pennsylvania case, other case law and several of the commentaries find that interest is sufficient to overcome constitutional equal protection objections. In our view, given the viability of state postmajority support law in a number of jurisdictions other than in Pennsylvania, and given enactment in Connecticut of a limited postmajority support law, postmajority support orders address a legitimate state interest in the education and welfare of our children and are constitutionally viable.

The Commission nonetheless acknowledges the legitimate concerns raised by opponents of postmajority support.

The crux of these concerns is that postmajority support orders deprive divorced or unmarried parents of authority that they would hold if they were married parents to determine whether and at what level they will provide for the education of their adult children. This issue has equal protection, privacy, and due process contexts. At least under the prevalent laws and proposals, married parents are not compelled to carry the burden of college expenses. Equally clearly, individual children of married parents are not granted a similar right to parental support for college. While it is true that a similar equal protection variant in obligations exists with respect to divorced parents of minor children (the noncustodial spouse loses discretion to determine support in that case too), the case of postmajority education expenses can be distinguished on several grounds. The adult child, under traditional analysis, is legally responsible for his own actions, including debts incurred; the decision to confer a college education is fraught with value judgments that have unique "first amendment" and "privacy" aspects – such as the nature of the education sought; and the burden being imposed is so substantial as to be analogous to testamentary and other intergenerational transfers that are traditionally left to the discretion of the individual. While the equal protection, due process, and privacy arguments do not appear to be sufficient to overturn a postmajority statute on constitutional grounds, the legislature should carefully consider the concerns that they represent.

As noted above, to facilitate consideration of this issue, the Commission has prepared a draft statute enclosed herein as Attachment 1. The draft may be summarized as follows:

Subsection (a) sets out the basic authority allowing a court to enter an order for educational support. The draft requires that there be a prior or concurrent order for child support – thereby limiting the context for the award to dissolution cases and paternity actions. The award does not apply to an intact family. The award is time-limited to the date on which the child attains twenty-three – but if that birthday is in the middle of an academic year, the termination date is the end of that academic year. The statute acts only prospectively and is limited to cases where the initial order for support is entered after the effective date of the act.

Subsection (b) sets out the criteria for making the award. The court is directed to consider all relevant circumstances, including six criteria that are expressly listed. Subparagraphs (1) through (3) require consideration of available resources and are uncontroversial. Subparagraph (4) requires consideration of the reasonableness of the higher education in the light of the child’s ability and those resources. This criteria is self-evidently appropriate, but may be difficult as a practical matter to evaluate in cases where the child is young at the time of the award. However, an initial award that becomes inappropriate later because of a substantial change would be subject to modification under subsection (f). Subparagraph (5) requires consideration of the likelihood that the parents would have supported the child were the family intact. Advisors were split as to whether this consideration, which requires consideration of a hypothetical, was appropriate and subject to pragmatic application. On the one hand, there are circumstances where prior parental background and prior actions will strongly suggest that it is the mere circumstance of the dissolution that is denying the child support. On the other hand, the provision is asking the court to speculate. Moreover, it is not clear that what a parent might have done is really the crucial question. Perhaps the court should restrict its analysis to criteria that are knowable. The Commission, after discussions, voted to include such a subsection as set out in the draft. Subsection (6) requires consideration of the child’s preparedness and attitude. As with subsection (4), complete evaluation of these issues may not be possible when the initial order is entered. Nonetheless, the committee felt the issues to be relevant. Moreover, in an appropriate case, they might be considered in a motion for modification.

Subsection (c) sets out conditions that the child must meet to actually receive payments. In short, the child must be attending the institution in good academic standing, pursue a particular course of instruction toward a specified goal, and make academic records available during the term of the order.

Subsection (d) delineates what expenses the order may cover. Concern was raised by some members that including "living expenses" and "medical expenses" exceeded a charge related to educational expenses. The dominant view was that an order was limited by the requirement that it be "necessary" for purposes of obtaining the education and that, in that context, necessary living or medical expenses could not, for example, be distinguished from a payment for room and board.

Subsection (e) provides the court discretion in determining how payments are made.

Subsection (f) sets out that such an order is enforceable and modifiable like other support orders. Further consideration should be given to the interaction of such a provision with the current IV-D system. In the usual context, postmajority payments would not constitute traditional child support and would be handled outside of that system.

Subsection (g) expressly states that the draft does not create a private right of action for the child. If this were not the case, the draft would raise the disconcerting specter of promoting litigation by children against their parents and undermining those relationships.

Subsection (h) clarifies that the draft does not apply to postgraduate education. Subsection (i) clarifies that a family support magistrate has jurisdiction in an appropriate case.

cc: Vice Chairs, Judiciary Committee

Ranking Members, Judiciary Committee

Proposed Language