A legal argument I have often made (never successfully) and would love to eventually appeal is whether a parent’s legal obligation to support his or her minor child should terminate as a matter of law when that child has legal and physical custody of his or her own child. Typically, this situation arises when a teenage girl bears and keeps a child born out-of-wedlock. See S.C. Code Ann. § 63-17-20(B) (Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child). The court does not presume this teen mother is emancipated, and thus her parents’ obligation to provide her financial support doesn’t end. Instead, South Carolina courts have determined that the issue of “[w]hether a child has been emancipated depends on the facts and circumstances of each case.” Purdy v. Purdy, 353 S.C. 400, 578 S.E.2d 30 (Ct.App.2003). However, I cannot understand the logic that one can have legal and physical custody of a child without being emancipated: how can one have legal control over another’s life without having legal control of one’s own life? The family court has never accepted my logic and continues to require parents to support their minor children in circumstances in which those children have legal possession of their own children.
Thus, I was completely confounded to realize that South Carolina has a statute requiring grandparents to pay child support for their grandchildren when their own minor child bears a child out-of-wedlock. Yet S.C. Code Ann. § 63-17-350 requires:
When a child is born to parents, either or both of whom are unmarried and under eighteen years of age, the Child Support Enforcement Division of the State Department of Social Services may pursue support and maintenance of that child from one or both of the child’s maternal and paternal grandparents as long as the parent of the child is under eighteen years of age.
Evidently, this statute was an outgrowth of the Federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (a/k/a Clinton’s welfare reform). Buried within this act, is a provision that added subsection 18 to 42 U.S.C. 666(a):
(18) Enforcement of orders against paternal or maternal grandparents. – Procedures under which, at the State’s option, any child support order enforced under this part with respect to a child of minor parents, if the custodial parent of such child is receiving assistance under the State program under part A of this subchapter, shall be enforceable, jointly and severally, against the parents of the noncustodial parent of such child.
This subsection grants states the option of collecting child support from grandparents for grandchildren if the parent is a minor. South Carolina is one of the states that has chosen to pursue this opinion. To date there are no reported cases in which South Carolina courts have ordered a grandparent to pay child support and I am unaware of any cases at the family court level. However by what due process logic can we require grandparents to support their grandchildren? Generally obligations flow from rights and grandparents have few rights regarding their grandchildren and no right to custody of their grandchildren. I’m surprised some grandparent hasn’t brought a due process defense to these grandparent child support statutes (it may be that there are so few attempts to actually make grandparents pay such child support that no due process argument has been raised).
If the logic of making a parent financially support a child who has custody of his or her own child is perplexing, the logic of making that parent support their child’s own child is stupefying. From what reasoning can such a requirement be imposed? These statutes feed my belief that the primary goal of family law isn’t family stability but merely to insure that children and dependant spouses do not become wards of the state.