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A switch in justices revives previous South Carolina law on college support

Less than two years ago, the South Carolina Supreme Court, in Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010), overruled Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979) and its progeny, and held that South Carolina case law allowing the family court to require divorced or unmarried parents to contribute college support to be an unconstitutional violation of equal protection.  I’m not claiming clairvoyance but when I blogged on Webb, I concluded:

 I note the Supreme Court’s 3-2 decision was with recently retired Justice John Waller in the majority and with new Justice Kaye Hearn not participating.  Given Justice Hearn’s extensive family law practice prior to her elevation to the appellate court, it would be interesting to know if she would have ruled with the majority.  Depending upon Justice Hearn’s views and the strength of this Court’s commitment to stare decisis, it may be that Webb itself is reconsidered or overruled at some point, and that the Supreme Court finds requiring divorced or unmarried parents to provide college support for their children does not violate equal protection.

Less than two years later, in the March 7, 2012 decision of McLeod v. Starnes, 396 S.C. 647, 723 S.E.2d 198 (2012), the South Carolina Supreme Court answers that issue and reinstates the South Carolina family court’s authority to require college support contributions from unmarried or divorced parents.  The four justices who remain from the Webb panel held the same way that they’d held in Webb.  It was the replacement of Waller for Hearn, who wrote McLeod’s majority opinion, that led to this 180 degree different result which concluded:

 Risinger does not violate the Equal Protection Clause because there is a rational basis to support any disparate treatment Risinger and its progeny created.  In fact, the case before us particularly demonstrates the need for a rule permitting an award of college expenses in certain circumstances in order to ensure children of divorce have the benefit of the college education they would have received had their parents remained together.  Accordingly, we reverse the order of the family court and remand this matter for a determination of whether and in what amount Father is required to contribute to Collin’s college education under the law as it existed prior to Webb.

Emphasis added.

In finding there was a rational basis to require unmarried or divorced parents to contribute college support, when there was no such requirement for married parents to do so, the majority noted:

 This State has a strong interest in the outcome of disputes where the welfare of our young citizens is at stake.  As can hardly be contested, the State also has a strong interest in ensuring that our youth are educated such that they can become more productive members of our society.  It is entirely possible that most parents who remain married to each other support their children through college years.  On the other hand, even well-intentioned parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved. Therefore, it may very well be that Risinger sought to alleviate this harm by minimizing any economic and educational disadvantages to children of divorced parents.  There is no absolute right to a college education, and section 63-3-530(A)(17), as interpreted by Risinger and its progeny, does not impose a moral obligation on all divorced parents with children.  Instead, the factors identified by Risinger and expounded upon in later cases seek to identify those children whose parents would otherwise have paid for their college education, but for the divorce, and provide them with that benefit.

Citations omitted.

The final sentence of that section seems to read a requirement into Risinger and its progeny that college support can only be ordered for “those children whose parents would otherwise have paid for their college education, but for the divorce.”  My recollection of pre-Webb jurisprudence is that this requirement was routinely rejected by the family courts, who wouldn’t consider a divorced parent’s good-faith reasons (the child’s a spendthrift, lazy, or disrespectful) for refusing college support.

In overruling Webb, the Supreme Court seemed minimally concerned with stare decisis, even reaching the constitutional issue when it didn’t need to do so:

 We are not unmindful of Mother’s alternate argument that Father separately agreed to pay for Collin’s college expenses.  Although we are cognizant of our hesitancy to reach constitutional questions when it is not necessary, there is no cogent reason to let the error in Webb persist.

The Supreme Court also found that Father was not entitled to a retroactive adjustment in his child support, as it found the figures used by the court in setting temporary support had been the proper figures at that time.  If further remanded the matter for reconsideration on Mother’s request for attorney’s fees based upon the changed results on appeal.

I can’t claim surprise from the McLeod decision, as most states that have considered the issue of whether requiring divorced or unmarried parents to provide college support for their children violates equal protection have found that it doesn’t.  However, I consider it poor jurisprudence to require any post-majority support, as such support confuses legal obligations with moral obligations.  It is interesting that Judge Beatty dissent focuses on this concern:

In my opinion, this was in error as a parent’s only financial responsibility for a child’s college expenses emanates from a moral obligation.

In reaching its decision, the majority seizes upon this moral obligation.  A moral obligation, however, cannot substantiate the imposition of a legal obligation.  Although I am cognizant of the deleterious financial and emotional effects of divorce, these alone do not justify disparate treatment of children of divorced families and children of intact families.  The children are similarly situated in that they are over the age of eighteen and desire parental financial support for college education.

While the majority in McLeod left open the issue of whether Risinger was incorrectly decided on statutory construction grounds, the opinion offers little hope for such a challenge:

 Over thirty years ago, Risinger held the predecessor to section 63-3-530(A)(17) permits a family court to award college expenses if certain criteria are met.  Since Risinger, the statutes conferring jurisdiction on the family court have been amended repeatedly, yet the General Assembly never limited Risingerapplication.  The Legislature is presumed to be aware of this Court’s interpretation of its statutes. When the General Assembly failed to amend this section over the course of three decades, its inaction is evidence it agrees with this Court’s interpretation.  At this juncture, we are therefore unwilling to agree with the dissent’s sua sponte conclusion that the General Assembly never intended to give the family court jurisdiction to order the payment of college tuition as an incident of child support.  Due to the General Assembly’s tacit approval of Risinger for over thirty years and the fact its construction has never been challenged, not even in this case, reaffirming this principle does not amount to legislating from the bench or a cavalier disregard of the Legislature’s express limitations on the family court’s jurisdiction as the dissent suggests.  If the dissent’s assessment of legislative intent were correct, we are confident the General Assembly would have amended the jurisdictional statutes accordingly since 1979.

Citations omitted.

For now, it appears that South Carolina authorizes the family court to require unmarried or divorced parents to contribute college support for their children, even private school support (see footnote 8 of McLeod).  It remains to be seen how much and how strongly the family court upholds McLeod’s apparent requirement of a showing that, but for the divorce, the parent would have provided college support.  However, I suspect that this aspect of McLeods majority opinion will be overlooked, just as it was apparently overlooked prior to Webb.

  • Paul D. Schwartz

    Query since a spouse apparently cannot be required to pay college expenses for a child outside of the Family Court, what if that were the only issue between two spouses. Would they need to be living separate and apart to bring the issue and/or be divorcing, or if say my Wife and I did not agree on that one issue in our home, would we be able to utilize the Family Court and try to force the issue without resolving any other marital issues between us. What do you think ? Test case (not us) ?

    • Paul:

      Given the recent decision in Theisen v. Theisen, 394 S.C. 434, 716 S.E.2d 271 (2011), I think it’s pretty clear they would need to separate before seeking the family court to require college support.

  • Giovanni

    McLeod v. Starnes is an attack on Parental Rights. The courts do not have the authority to make educational decisions simply because they somehow believe a better decision can be made. To my knowledge, no one has everyone challenged post majority support in the context of Parental Rights. My argument is as follows:

    PRELIMINARY STATEMENT

    Plaintiff, , presents this legal brief in support of his Motion to declare the law of Necessary Education is Unconstitutional & Decreeing a Conflict of Interest Exists In Attempting Collect Child Support Beyond the Age of Majority.
    STATUTE BEING CHALLENGED AS UNCONSTUTIONAL:
    N.J.S.A. 2A:34-23(a)(5)

    NECESSARY EDUCATION CASES BEING CHALLENGED AS UNCONSTUTIONAL:
    Newburgh v. Arrigo, 88 N.J. 529, 545, 443 A.2d 1031 (1982), Hoefers v. Jones, 288 N.J. Super. 478, (App. Div. 1996),
    FEDERAL CONSTITUTION:
    Amendment XIV Section 1.
    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    STATE CONSTITUTION:
    Article I- All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.
    N.J. Const. Article VIII, § 4, P 1, which states:
    The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.

    NEW JERSEY CASE LAW ON NECESSARY EDUCATION

    In Newburgh v. Arrigo, 88 N.J. 529, 545, 443 A.2d 1031 (1982), the Court acknowledges that parents are not under a duty to support children after the age of majority. Nonetheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children. Frequently, the issue of that duty arises in the context of a divorce or separation proceeding where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education. In those cases, courts have treated “necessary education” as a flexible concept that can vary in different circumstances. Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971) (directing father to pay $ 3,200 per year towards son’s college expenses); Limpert v. Limpert, supra, 119 N.J. Super. at 442-443 (father directed to continue weekly support payments for 20-year-old son as long as son was full-time student in regular courses towards undergraduate degree); Nebel v. Nebel, 99 N.J. Super. 256, 261-263 (Ch.Div.), aff’d o.b., 103 N.J. Super. 216 (App.Div.1968) (on motion of wife, husband ordered to pay $ 1,500 per year towards son’s college costs); Jonitz v. Jonitz, 25 N.J. Super. 544, 556 (App.Div.1953) (although finding that the facts did not warrant an award solely for college expenses, court ordered continued support of son while son enrolled as student); Cohen v. Cohen, 6 N.J. Super. 26, 30 (App.Div.1949) (in dicta, court noted broad power to award support including costs of an advanced education in appropriate cases); Sakovits v. Sakovits, 178 N.J. Super. 623, 630 (Ch.Div.1981) (court declined to order father to pay school expenses of 22-year-old son because son waited four years to begin college, had accepted $ 3,200 from father to start a business, and father had relied on son’s expressed intent not to go to college in structuring his finances); Ross v. Ross, 167 N.J. Super. 441, 444-446 (Ch.Div.1979) (father directed to continue weekly support payments for 23-year-old daughter until she completed law school); Schumm v. Schumm, 122 N.J. Super. 146, 148-150 (Ch.Div.1973) (father’s motion to vacate support order when son reached 18 denied because son in college); Hoover v. Voightman, 103 N.J. Super. 535, 539-540 (Cty.Ct.1968) (father ordered to continue support payments to all children, including 18-year-old college freshman).
    In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone. State, county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reasonable costs. Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school. The State of New Jersey take’s the position that the Parens Patriae Power they believe they have, entitles a family court judge to hold children in “common” between the State and the parent.
    In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
    Once the Court receives an application from the custodial parent seeking private education contribution, the Court under the presumption they have Parens Patriae Power routinely grants these request which may serve the best interest of the child or an Adult Child. Yet, a fit parent’s decision that private education would not be in the child’s best interest is accorded no deference, despite being a factor. N.J.S.A. 2A:34-23(a)(5) and case law provides no weight to accord the a fit parent’s decision any presumption of validity. Instead, the law routinely places the best-interest determination solely in the hands of the judge. Should the judge disagree with the fit parent’s estimation of the child’s best interests on education views, the judge’s view necessarily prevails. Thus, in practical effect, in the State of New Jersey, a family court judge can disregard and overturn any decision by a fit parent concerning private education and private higher education based solely on the judge’s determination of the child’s best interests.
    The decisional framework employed by the law of Necessary Education, directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. In this respect, the law fails to provide any protection for parents’ fundamental constitutional right to make decisions concerning the rearing of his or her child. Thus, when the State seeks, by statute or case law, to interfere with a private family matter, private education, parental rights and parental autonomy, a fundamental right is at issue. Therefore, a statute or case law should be subject to strict scrutiny and will pass muster only if it is narrowly tailored to serve a compelling state interest.
    Strict scrutiny is applied when the classification involves a suspect classification, i.e., race, ancestry, and alienage; or categorizations impinging upon a fundamental right, i.e., privacy, marriage, voting, traveling, and freedom of association. Hoffman v. US, 767 F.2d 1431, 1434 (Cal.1985) citing McLaughlin v. Florida, 379 U.S. 184, 191-92, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964), Oyama v. California, 332 U.S. 633, 644-46, 68 S.Ct. 269, 274-75, 92 L.Ed. 249 (1948), Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971), Roe v. Wade, 410 U.S. 113, 154-64, 93 S.Ct. 705, 727-32, 35 L.Ed.2d 147 (1973), Zablocki v. Redhail, 434 U.S. 374, 383-87, 98 S.Ct. 673, 679-81, 54 L.Ed.2d 618 (1978), Bullock v. Carter, 405 U.S. 134, 144, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972), Shapiro v. Thompson, 394 U.S. 618, 627, 89 S.Ct. 1322, 1327, 22 L.Ed.2d 600 (1969), NAACP v. Alabama, 357 U.S. 449, 460-62, 78 S.Ct. 1163, 1170-72, 2 L.Ed.2d 1488 (1958). Any law impinging on an individual’s fundamental rights is subject to strict scrutiny. San Antonio School District v. Rodriguez, 411 U.S. 1 (1973).To withstand strict scrutiny, a statute must be precisely tailored to serve a compelling state interest. Hoffman v. US, 767 F.2d 1431, 1435. The State’s compelling interest in a child’s education is limited to the State Constitution, because Parents have a fundamental right to control the education of their children.
    POINT ONE
    THE LAW OF NECESSARY EDUCATION IS UNCONSTITUIONAL BECAUSE PARENTS HAVE A FUNDAMENTAL LIBERTY INTEREST IN THE CUSTODY, CARE, CONTROL AND MANAGEMENT OF THEIR CHILDREN UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

    The Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” Moore v. City of East Cleveland, 431 U.S. 494, 503-04 (1977) (plurality opinion). The Court has long recognized the fundamental right of natural parents to direct the upbringing of their children, especially when the state purports to know better. Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); Parham v. J.R., 442 U.S. 584, 608 (1979); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These cases uphold the time honored principle that Parents have a fundamental liberty interest in maintaining the care, custody, companionship and management of their children. The law on Necessary Education violates these constitutional principles.

    In Meyer, a German schoolteacher challenged his conviction for illegally teaching a foreign language to students. Meyer, 262 U.S. at 397. Meyer argued that the law unreasonably infringed on his liberty interest protected by the Fourteenth Amendment. Id. at 399. The Court embraced Meyer’s argument, explaining:

    While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes … the right of the individual … to marry, establish a home and bring up children …

    [The teacher’s] right to teach and the right of parents to engage him so to instruct their children, we think are within the liberty of the Amendment.

    Id. at 399-400.

    THE COURT MAY NOT INVOKE PARENS PATRIE POWER
    TO RESOLVE PRIVATE AND PRIVATE HIGHER EDUCATION
    DISPUTES BETWEEN TWO FIT PARENTS

    Meyer began the long cascade of cases that specifically reject a broad Parens Patriae notion that children were held in “common” between the State and the parent. Id. at 401. The State of New Jersey has taken the opposite approach with N.J.S.A. 2A:34-23(a)(5), Newburgh v. Arrigo, 88 N.J. 529, 545, 443 A.2d 1031 (1982) and Hoefers v. Jones, 288 N.J. Super. 478, (App. Div. 1996). The Hoefers case, stated:

    “A child’s education, like other childhood needs–shelter, food, clothing, health, recreation, social, cultural, to name but a few–is an obligation for which parents have been historically held accountable by statute, by Chancery Courts asserting parens patriae powers on behalf of the state. N.J.S.A. 2A:34-23, State v. Perricone, 37 N.J. 463, 475, 181 A.2d 751 (1962) cert. denied. 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962).”

    The statutory law and the law of Necessary Education appears to reject the Constitutional command that that the exercise of Parens Patriae Power is subject to the United States Constitutional system of Ordered Liberty. See Meyer v. Nebraska, 262 U.S. 390, 290 (1923)(“Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.”). Particularly after the enactment of the Thirteenth and Fourteenth Amendments, the Supreme Court applied due process principles and strict scrutiny analysis to limit state invocations of its Parens Patriae Power. Liberty in “matters relating to marriage, procreation, family relationships, and child rearing and education” are “’fundamental’” and “’implicit in the concept of ordered liberty’ as described in Palko v. Connecticut, 302 U.S. 319 (1937).” Paul v. Davis, 424 U.S. 693, 713 (1976). “In these areas . . . there are limits on the state’s power to substantively regulate conduct.” Id.
    The admonition to function in a ‘parental’ relationship of standing is not an invitation to procedural arbitrariness. Kent v. United States, 383 U.S. 541, 555 (1965). States may not exercise such power in a manner that has “all-encompassing scope and . . . sweeping potential for broad and unforeseeable application.” Wisconsin v. Yoder, 406 U.S. 205, 234 (1972). With respect to school teachers, they have only such portion of parental authority as a parent may choose to temporarily commit to the teacher’s charge, in order to answer the purposes for which the parent has initiated the employment. Vernonia School District 47J v. Action, 515 U.S. 646, 654-55 (1995)(quoting 1 W. Blackstone, Commentaries on the Laws of England 441 (1769)).
    State governments may not properly override parental decisions or terminate custody, unless 1) parents delegate their authority to the state voluntarily and knowingly, or 2) the state demonstrates through appropriate due process that there is clear and convincing evidence that the parents have triggered state parens patriae interests by placing their children in clear and present danger. C.f. Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d. Cir. 1997). The Law of Necessary Education violates these principles.
    In this case, the liberty of both parents is an issue. They both have a liberty interest to direct the upbringing and education of their child(ren) under their control and without State interference. Therefore, the Court may not exercise Parens Patriae Power to resolve a private or higher education dispute or contributions. The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better decision could be made. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The law allows Family Court Judges to make child rearing educational decisions, simply because the law allows them to believe a better decision can be made. The Law of Necessary Education violates these principles. It is true that a disagreement between the Parties exists. However, simply because the decision of a parent is not agreeable to a child or other parent or, because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. Parham v. J. R., 442 U.S. 584 (1979).
    The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Parham, 442 U.S. at 603 (emphasis in original). Parents and children do not have competing interests, and it is not correct to presume or assume that parents and children are “adversaries.” Santosky, 455 U.S. at 760 (“until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship”). Our Constitution treats parents as natural allies of their children. Parham, 442 U.S. at 602. The Law of Necessary Education violates these principles.

    Our jurisprudence holds a high regard for the family into which a child has been born. Santosky, 455 U.S. at 759, 765-66 (rejecting “balanc[ing]” of the “the child’s interest in a normal family home against the parents’ interest in raising the child,” or consideration of “whether the child would have a better home elsewhere”). Our Constitution assumes that children want to remain with their natural family. Id. at 766. The Court has never recognized a separate interest or right that is child-specific, per se; the only recognized right for children in this context is the child’s reciprocal right to maintain his natural family relationship. Parham, 442 U.S. at 603 (not all choices will be “agreeable to a child,” but that “does not automatically transfer the power to make that decision from parents to some agency or officer of the state”); Santosky, 455 U.S. at 765. To suggest government’s “special interest” in protecting children, or invoking the altruistic language of “best interest,” or simply saying that “children have a right to be free from harm” are legally insufficient criteria for “children’s rights” and elevating the role of the state into the lives of families. The statute in question and the Law of Necessary Education clearly and routinely violate these constitutional principals. See Martin Guggenheim, What’s Wrong with Children’s Rights, passim (Harvard University Press 2005). All human beings have dignity and the right to be free from harm–it is not uniquely a children’s right. The Santosky Court’s “refusal to consider the rights of the children [was] analytically correct, since such consideration would involve the assumption of unproven facts. The refusal demonstrates the Court’s commitment, as a policy matter, to the autonomy of the family unit.” Barbara Shulman, The Supreme Court’s Mandate for Proof Beyond a Preponderance of the Evidence in Terminating Parental Rights, 73 J. Crim. & Criminology 1595, 1606 (Winter 1982).
    Our jurisprudence does not see the child in isolation, but as an extension and ward of his parents, not the state. Parham, 442 U.S. at 602-03 (parents are presumed to “act in their child’s best interest”); Pierce, 268 U.S. at 535; Meyer, 262 U.S. at 401. Children are not merely autonomous individuals needing the cacophony of alternate voices (e.g., state social services, guardian ad litems, educators, etc.) contending to speak on their behalf. Yoder, 406 U.S. at 213; Parham, 442 U.S. at 606 (rejecting childhood by committee approach); Guggenheim, What’s Wrong with Children’s Rights 95 (e.g., assigning independent counsel for a toddler to advance the child’s so-called interest is a legal fiction, as that grown-up lawyer assigned is merely advancing what that grown-up envisions as best for the child). Our Constitution rejects the notion that children receive independent consideration “absent a finding of neglect or abuse” by their parents. Parham, 442 U.S. at 604. The law of Necessary Education embraces this notion and circumvents precedent from the United States Supreme Court.
    The State and the parent do not stand in equipoise, or have an equal interest in the child. Vivek S. Sankaran, Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Rights of Non-Offending Parents, 82 Temple Law Review 55 (Spring 2009) (showing a historical rejection of broad parens patriae doctrine as case law on parental liberty interest was developed in Meyer, Pierce, Prince, Yoder). “The State’s interest in caring for … children is de minimis if [the parent] is shown to be fit.” Stanley, 405 U.S. at 657-58 (the State “spites its own articulated goals” of child protection when it presumptively and arbitrarily removes children without a due process hearing). The State’s parens patriae interest in promoting the welfare of the child is secondary and triggered only where parents have been determined unfit. The law of Necessary Education violates this principle. Santosky, 455 U.S. at 767 n.17; cf. In re Gault, 387 U.S. 1, 16, 30 (1967) (pejoratively describing latin term parens patriae as a rationalization “to exclude juveniles from the constitutional schemes” and invite “procedural arbitrariness”). The State has no viable interest in children who are with fit parents. The State only has an interest in children who are genuinely abused and need protection, and even then, that interest arises only after a judicial adjudication of parental unfitness.
    POINT ONE CONTINUED
    In Pierce v. Society of Sisters, supra, the Court again upheld the wide scope of the liberty interest provided to parents by the Fourteenth Amendment when it overturned an Oregon statute that prohibited parents from enrolling their children in private school. Pierce, 268 U.S. at 530. Relying on Meyer, this Court held that the statute:

    unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. … The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

    Id. at 534-35.

    The law of Necessary Education violates principal. The Court reaffirmed its commitment to the rights of natural parents in Wisconsin v. Yoder, 406 U.S. 205, 207 (1972), overturning convictions of Amish parents for removing their children from school before age sixteen. The state’s interest in providing universal education had to “yield to … the interest of parents in directing the rearing of their off-spring.” Yoder, 406 U.S. at 213-14. The same is true about the Law of Necessary Education. The Yoder Court noted that the state can override parents only where “it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” Id. at 233-34. “The primary role of parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Id. at 232. The law of Necessary Education violates this principal.
    Around the same time, the Court also took up the issue of parental rights as applied to an unwed father in Stanley v. Illinois, 405 U.S. 645 (1972). Following the death of the mother, Stanley, the natural father, directed that his children move into his friend’s home, much to the chagrin of the state, which sought to make another choice for the children. Stanley, 405 U.S. at 658.

    The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children “come[s] to this Court with a momentum for respect lacking when appeal is made to the liberties which derive merely from shifting economic arrangements.”

    Id. at 651. The Court concluded “that all parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody” and laid the groundwork for the presumption of parental fitness. Id. at 658.
    In Moore v. City of East Cleveland, supra, this Court struck down a housing ordinance that restricted categories of relatives who could live together as “intrud[ing] on choices concerning family living arrangements.” Moore, 431 U.S. at 499 (plurality opinion). The Moore court employed the principles elucidated in “Yoder, Meyer and Pierce” in a school setting, and extended them to “households” where “decisions concerning child rearing” were “shared with … other relatives” who take on major responsibilities for the child. Id. at 503-05.
    In Parham v. J.R., supra, the Court considered the ability of the state to second guess the decisions of natural parents to commit their own child to a mental institution without state approval. The Court recognized that parents made such difficult choices based on their own observations and independent professional recommendations, and that “[n]either state officials nor federal courts are equipped to review such parental decisions.” Parham, 442 U.S. at 604.
    [H]istorically [the law] has recognized that natural bonds of affection lead parents to act in the best interest of their children. … The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to the American tradition.

    Id. at 602-03 (emphasis in original); see also Smith v. Organization of Foster Families, 431 U.S. 816, 847, 860 (1977) (differentiating foster families as “squatters” to the rights enjoyed by natural parents, who would have a “liberty interest” in the “survival” or an “expectancy” of “continuation” of their family that is protected under the Fourteenth Amendment).

    In Santosky v. Kramer, 455 U.S. 745 (1982), the Court squarely addressed parental rights in the context of a state proceeding seeking to extinguish both a family’s natural and legal relationship. The Santosky Court held that before a state could completely and irrevocably sever the rights of a parent in their natural child, due process required that the state support its allegations by at least clear and convincing evidence. New York’s statutory scheme providing for a “fair preponderance of the evidence” standard was “inconsistent with due process” owed to parents and children. Santosky, 455 U.S. at 758. The Court held that the private interest affected in maintaining family association was a “commanding” one, and that the “risk of error” from employing the lower standard of proof was “substantial” since it distributed a near equal allocation of risk of error as shared between the parents and the State. Id. at 761 (“we have no difficulty finding that the balance of private interests strongly favors heightened procedural protections”).
    Though the children had been in the state’s care for three years, and the parents were not ideal, this Court held that the “fundamental liberty interest of natural parents in the care, custody and management of their child” did not “evaporate.” Id. at 753. The Court again reiterated that a natural parent’s “interest [is] far more precious than any property right.” Id. at 758-59.
    After Santosky, this Court decided that a state may not condition a right to appeal a termination of parental rights decree on that parent’s ability to pay a record preparation fee in M.L.B. v. S.L.J., 519 U.S. 102 (1996). Though much of the M.L.B. opinion was based on the equal access to courts rationale, the Court nonetheless reaffirmed that the family relationship is a protected associational right that is “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B., 519 U.S. at 116. The Law of Necessary Education violates this principle.

    The Court has remained steadfast to the rights of natural parents. In Troxel v. Granville, 530 U.S. 57 (2000), six justices coalesced around the parents’ liberty interest to determine a child’s associations, finding “breathtakingly broad” a state law that, based on a “best interest” standard, opened the door to any third parties seeking legal relationships with children over the objections of the natural parents. Troxel, 530 U.S. at 65-68 (plurality opinion), 78 (Souter, J., concurring), 80 (Thomas, J., concurring).

    The liberty interest at issue in this case–the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.

    Id. at 65 (plurality opinion), accord at 77 (Souter, J., concurring); 80 (Thomas, J., concurring).
    The distillation of these cases means that natural parents have the protected right to direct, control, care for, and manage their children, including the right to determine how to educate their child(ren). The statute and case law on Necessary Education is so beyond a reasonable doubt in conflict with constitutional provisions that it should be stricken down as invalid.
    POINT TWO
    THE LAW OF NECESSARY EDUCATION IS UNCONSTUTIONAL BECAUSE PARENTS HAVE A FUNDAMENTAL RIGHT TO CONTROL THE EDUCATION OF THEIR CHILDREN

    The parents’ right to control the education of their children is fundamental. The law of Necessary Education somehow embraces a broad Parens Patriae notion that children are held in “common” between the State and the parent and circumvents the Parental Rights Doctrine. The law can compel parents or a parent to contribute towards private and higher education for their children; compel a parent to pay adult child support beyond the age of majority over the objection of fit parents; without a finding of unfitness; without a finding of harm; without regard that free public education is adequate even for the elite student, without regard that parents have fundamental right to control the education their children without state interference and that the present law infringes upon this right to a select class of parents, without regard that the right to rear one’s child has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, without regard that as long as a parent adequately cares for his or her child is fit, (as in this case), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children, without regard that family liberty may not be interfered with, under the guise of protecting the public interest, without regard that parents’ have a fundamental right to keep their children free from government standardization, without regard the State is exercising rigid and repressive control over private family life to a select class of parents, without regard that Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better decision could be made, without regard that the State’s compelling interest in education of a minor or an adult child is limited to the N.J. Const. art. VIII, § 4, P 1, not private or higher education, without regard at common law, parents had no legal right to petition the court for private elementary, private high school or college education contribution, without regard that parents have an expressed liberty interest in “matters relating to marriage, procreation, family relationships, and child rearing and education” are “’fundamental’” and “’implicit in the concept of ordered liberty,’ without regard that childrearing autonomy is rooted in the right to privacy, without regard the State’s exercise of Parens Patriae power shall be subject to the United States Constitutional system of Ordered Liberty, without regard the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition; without regard the decisional framework employed by statute and case law, directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child; without regard that a decision of parent is not agreeable to the child or other parent, or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state; without regard the right of parents to raise their children is a pre-constitutional right having its origins entirely apart from the power of the State and without regard the tradition of parental authority is… one of the basic presuppositions of individual liberty and without regard that the state’s interest in education, i.e., creating good citizens … yield[s] to … the interest of parents in directing the rearing of their off-spring.

    The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. In Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), the Court again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” The Court explained in Pierce that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” 268 U.S. at 535.
    In Pierce, the Supreme Court struck down an Oregon compulsory education law which, in effect, required attendance of all children between ages eight and sixteen at public schools. The Court declared under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children. [emphasis supplied] The same can be said about New Jersey’s Law on Compulsory Necessary Education. The Law of Necessary Education violates this principle.
    In Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ” It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” 321 U.S. at 166. The Law of Necessary Education violates this principle.

    Meyer, 262 U.S. at 400 (“it is the natural duty of the parent to give his children education suitable to their station in life”); Yoder, 406 U.S. at 213 (the state’s interest in education, i.e., creating good citizens … “yield[s] to … the interest of parents in directing the rearing of their off-spring”); Prince, 321 U.S. at 166 (parents have the “primary function” to prepare children); Troxel, 530 U.S. at 65-66 (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents”) (emphasis added).
    In subsequent cases also, the Court has recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (discussing “the fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right . . . to direct the education and upbringing of one’s children” (citing Meyer and Pierce)).
    The distillation of these cases means that natural parents have the protected right to direct, control, care for, and manage their children, including the right to determine how to educate their child(ren). The law on Necessary Education is so beyond a reasonable doubt in conflict with constitutional provisions that it should be stricken down as invalid.
    POINT THREE
    UNLESS PARENTS ARE SHOWN BY CLEAR AND CONVINCING EVIDENCE OR A PREPONDERANCE OF EVIDENCE TO BE UNFIT, THE STATE OF NEW JERSEY HAS NO COMPELLING INTEREST TO DIRECT A PARENT TO PAY FOR PRIVATE EDUCATION COSTS FOR A MINOR OR AN ADULT CHILD.

    The rights of the family to be free from significant state interference are recognized as fundamental in American jurisprudence, Gruenke v. Seip, 225 F.3d 290, 303 (3d Cir.2000). The right of parents to raise their children is a pre-constitutional right “having its origins entirely apart from the power of the State,” Smith v. Oranization of Foster Families for Equality and Reform, 431 U.S. at 845 “deeply rooted in our Nation’s history and tradition,” Bellotti v. Baird, 443 U.S. 622, 638 (1979) and “as old and as fundamental as our entire civilization,” Griswold v. Connecticut, 381 U.S. 479, 495-96 (1965) (Goldbert, J. concurring). The Law of Necessary Education violates this principle.
    As the U.S. Supreme Court articulated, “the tradition of parental authority is… one of the basic presuppositions of individual liberty.” Bellotti v. Baird, 443 U.S. at 638. The Court has recognized not only the privacy and integrity of family life but also the unique and special social function that the family serves. The United States Supreme Court has made clear that there is a “fundamental right of parents to make decisions concerning the care, custody and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 57 (2000). See e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 573, 69 L. Ed. 1070, 1078 (1925) (acknowledging right of parents to direct upbringing and education of their children); Meyer v. Nebraska, 262 U.S. 390, 401, 43 S. Ct. 625, 627, 67 L. Ed. 1042, 1046 (1923) (recognizing right of parents to control education of their children).
    The United States Supreme Court has provided guidance on the boundaries of a parent’s right to control a child’s upbringing and education. The substantive fundamental right of parents to make decisions regarding the “care, custody, and control” of their children is premised on the legal presumption that fit parents act in the best interests of their children. There is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979)]:
    “Our constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare their children for additional obligations. … The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.” 442 U.S., at 602 (alteration in original) (internal quotation marks and citations omitted).”

    Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), (as in this case), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. Reno v. Flores, 507 U.S. 292, 304 (1992); Troxel, 530 U.S. 57, 87 (2000). The law is clear, when no harm threatens a child’s welfare, the State lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit. Parental rights consist of fundamental liberty and privacy interest, which the State can only infringe upon after finding a child is in severe harm, or severe danger of being harmed. Although often expressed as a liberty interest, childrearing autonomy is rooted in the right to privacy. See Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (1944) (observing existence of “private realm of family life which the state cannot enter”); V.C. v. M.J.B., 163 N.J. 200, 218, 748 A.2d 539 (remarking that “the right of a legal parent to the care and custody of his or her child derives from the notion of privacy”), cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L. Ed.2d 243 (2000).
    These Constitutional principles are now being applied in New Jersey. For example, in Watkins v. Nelson, 163 N.J. 235 (2000), in a struggle between grandparents and a natural father over the custody of a child, the Court found that utilizing a best interests standard violated the fundamental right of the father to family autonomy. The same constitutional rationale should apply to this case. The Court determined that only a showing of unfitness, abandonment, gross misconduct or exceptional circumstances would overcome the presumption in favor of the parent, and that “exceptional circumstances” requires proof of serious physical or psychological harm or a substantial likelihood of such harm. Watkins explains that avoiding harm to the child is the polestar and the constitutional imperative that is necessary to overcome the presumption in favor of the parent’s decision and to justify intrusion into family life.
    Because the Grandparent Visitation Statute is an incursion on a fundamental right, under Watkins, it is subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest. The only state interest warranting the invocation of the State’s Parens Patriae jurisdiction to overcome the presumption in favor of a parent’s decision and to force grandparent visitation over the wishes of a fit parent is the avoidance of harm to the child.
    The Court acknowledged that when no harm threatens a child’s welfare, the State lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit. However, when harm is proved and the presumption in favor of a fit parent’s decision making is overcome, the court must decide the issue of an appropriate visitation scheduled based on the child’s best interests. For far too long, the New Jersey Family Courts have applied the law of equity, rather than following the State and Federal Constitution.
    In this context, the Constitution requires that a prior and independent finding of parental unfitness must be made before the court may proceed to the question whether an order disturbing a parent’s care, custody, control, upbringing and education of his or her child is in that child’s best interests. The state’s compelling interest in directing a select class of parents to pay for private elementary, high school, vocational and college education, is limited to overruling the decisions of unfit parents, and is limited to the N.J. Const. art. VIII, § 4, P 1. A parent can not be deemed unfit simply because he or she does not agree towards private educational contributions.
    As the United States Supreme Court said in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), it is only “after the State has established parental unfitness at that initial proceeding, that the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge.” 455 U.S. at 760. Unless the parents are shown by clear and convincing evidence to be unfit or (even a preponderance of evidence), the state’s interest is not compelling:
    “[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.” Stanley v. Illinois, 405 U.S. 645, 652, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). All “parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody.” 405 U.S. at 658. In the absence of clear and convincing proof or a preponderance of proof that a parent is unfit, the state’s basis for intervention through the judicial system evaporates. “The State’s interest in caring for the children is ‘de minimis’ if the father is in fact a fit parent.” Quilloin v. Walcott, 434 U.S. 246, 248, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978).”
    The statute and case law on Necessary Education is so beyond a reasonable doubt in conflict with constitutional provisions that it should be stricken down as invalid.
    POINT FOUR
    THE LAW OF NECESSARY EDUCATON VIOLATES THE STATE AND FEDERAL CONSTITUTION EQUAL PROTECTION CLAUSE.

    Article I, Paragraph 1 of the New Jersey Constitution sets forth the first principles of our governmental charter – that every person possesses the “unalienable rights” to enjoy life, liberty, and property, and to pursue happiness. The Equal Protection clause of Federal Constitution provide that no person shall be denied the equal protection of the laws. U.S. Const. amend. XIV, § 1. Although our State Constitution nowhere expressly states that every person shall be entitled to the equal protection of the laws, the New Jersey Supreme Court has construed the expansive language of Article I, Paragraph 1 to embrace that fundamental guarantee. Sojourner A. v. N.J. Dep’t of Human Servs., 177 N.J. 318, 332 (2003); Greenberg v. Kimmelman 99 N.J. 552, 567-68 (1985). The first paragraph to our State Constitution “protect[s] against injustice and against the unequal treatment of those who should be treated alike.” Greenberg, supra, 99 N.J. at 568.
    The underlying premise upon which the New Jersey Supreme Court undertook its constitutional analysis of the private and post-secondary educational support scheme was that the legislation created two discriminatory classifications: children with married parents with immunity from private education contribution and children of divorcing/non-custodial parents that can be forced to pay an obligation against their will.
    Under the guise of protecting the public interest, legislation and case law developed to protect children of divorced or single parents from being unjustly deprived of opportunities they would otherwise have had if their parents had not divorced. The statute and case law was promulgated to ensure that children of divorced or single families are not deprived of educational opportunities solely because their families are no longer intact. The result is an incursion on Constitutional Parental Rights, which routinely allows judges to make child rearing educational decisions. In addition to heightened judicial involvement in the financial and private personal lives of divorcing and single parent families with children that is not necessary with intact married families with children. The New Jersey Supreme Court concluded that because of the unique problems of divorced families, the legislature could rationally conclude that absent judicial involvement, children of divorced families may be less likely than children of intact families to receive post-secondary educational support from both parents. This unconstitutional rationale circumvents the holding in Meyer v. Nebraska, 262 U.S. 390, 290 (1923), wherein the court held that the State cannot, under the guise of exercising its police power, interfere with guaranteed liberty interests.
    It is also believed, that New Jersey and a few sister State Courts have placed much emphasis on the following article in attempt to defeat an Equal Protection Claim is also at odds with the Constitution.
    Smith, Educational Support Obligations of Noncustodial Parents, 36 Rutgers L.Rev. 588, which discusses, in some detail at pages 626-41, the constitutionality of post-minority college support obligations, and concludes with this observation:

    “Following divorce the noncustodial parent, most frequently the father, often establishes a new life for himself, possibly including a new spouse, stepchildren, and new children. One result is that the interest, concern, care, and money of the noncustodial parent that is available for the children of the original marriage often declines or vanishes altogether. This is particularly true in such matters as the cost of education for their post-majority children. By imposing an educational support obligation on these parents, at least one of the disadvantages caused children by divorce can be reduced or eliminated. It is true that the imposition of this burden on divorced noncustodial parents establishes a classification with discriminatory obligations. However, as the Childers [v. Childers] [89 Wn.2d 592, 604, 575 P.2d 201, 208 (1978)] court pointed out, instead of an arbitrary, inequitable, unreasonable, or unjust classification, what exists is a package of special powers in equity that the courts, regardless of legislation, have long used to protect the interests of children of broken homes and to assure that the disadvantages of divorce on these children are minimized. In short, the courts have found a reasonable relationship between this classification and the legitimate state interest in minimizing the disadvantages to children of divorced parents….” 36 Rutgers L.Rev. at 641.
    With all due respect, this article is plagued with constitutional informalities and is an outrageous attack on Fundamental Parental Rights & Equal Protection. See Points One, Two and Three, which were never addressed in any court in any state concerning Post Majority Support or in this State, the Law of Necessary Education. The Court’s Parens Patriae Power it claims to have circumvents the holding of Meyer, which began the long cascade of cases specifically rejecting a broad Parens Patriae notion that children were held in “common” between the State and the parent. Id. at 401 As a citizen of this State, I can not accept this position of totalitarianism and social control under the guise of protecting the public interest. I stand for the Constitution, liberty, parental rights & freedom. The Newburgh decision is correct when it stated that parents are not under a duty to support children after the age of majority is correct. However, I do not concur with the rationale to allow a judge or government to know what’s best for a minor or an adult child and that a family court judge can somehow believe that they can run our personal lives better than we can.
    “I want for our country enough laws to restrain me from injuring others, so that these laws will also restrain others from injuring me. I want enough government, with enough constitutional safeguards, so that this necessary minimum of laws will be applied equitably to everybody, and will be binding on the rulers as well as those ruled. Beyond that I want neither laws nor government to be imposed on our people as a means or with the excuse of protecting us from catching cold, or of seeing that we raise the right kind of crops, or of forcing us to live in the right kind of houses or neighborhoods, or of compelling us to save money or to spend it, or of telling us when or whether we can pray. I do not want government or laws designed for any other form of welfarism or paternalism, based on the premise that government knows best and can run our lives better than we can run them ourselves. And my concept of freedom, and of its overwhelming importance, is implicit in these aspirations and ideals.”
    – Robert Welch, “My Concept of Freedom” (1964)

    “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

    ~Ronald Reagan, 40th president of U.S.
    The discriminatory classification adopted by both our legislature and case law is not focused on the parents but rather the children. The question is whether similarly situated young adults, those in need of financial assistance, may be treated differently. The statist notion that government may supersede parental authority in order to ensure bureaucratically or judicially determined “best interests” of children has been rejected as repugnant to American traditions. Judges and state officials are ill-equipped to second guess parents and are precluded from intervening in absence of powerful countervailing interests. Zummo v. Zummo, 574 A.2d 1130, 1138 (Pa. Super. 1990), citing Lehr v. Robertson, 463 U.S. 248, 257-61, 103 S.Ct. 2985, 2991-93, 77 L.Ed. 2d 614, 623-29 (1982). There can be no rational reason why those similarly situated with respect to needing funds for college education, should be treated unequally. See Curtis v. Kline, 666 A.2d 265 (Pa. 1995). The present Necessary Education Law allows a child of divorced or single parents a greater legal right to a private or college education than a child whose parents remain married.
    The law of Necessary Education circumvents N.J. Const. Article VIII, § 4, P 1, which states:
    The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.
    The New Jersey State Constitution has established a Constitutional Right for all of its citizens to participate in free public education and has established compulsory attendance requirements that in no case extend to post-secondary education to children of married parents, divorcing parents or single parents. The State’s compelling interest with respect to a child’s education limited to free public schools.
    It has been said that rights cannot exist merely in theory or on paper; they must exist in reality or they are meaningless. See Cooper v. Nutley Sun Printing Co., 36 N.J. 189, 197 (1961) (New Jersey Constitution does not embody rights in a vacuum, existing only on paper. And where rights are not equal in application or practice, then the promise and guarantee of equal rights remains unfulfilled. It is a commendable practice of recognizing when “one of our decisions has consequences that were not fully anticipated.” Pinto v. Spectrum Chems. & Lab. Prods., 200 N.J. 580, 598 (2010). Logically, that axiom is equally applicable when one of its decisions has not had the remedial consequences that the Court anticipated would result. Such is the case at bar.
    The law of Necessary Education must be struck down — even if it appears to have good intentions. There can be no dispute that it does not apply evenhandedly to similarly situated people. Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20, 37, 42 S. Ct. 449, 66 L. Ed. 817 (1922) (reviewing court must strike down unconstitutional law even though that law is “designed to promote the highest good.” I can agree that the good sought in this unconstitutional law is an insidious feature, because it leads the courts and legislators of good purpose to promote it, without thought of the serious breach it will make in the ark of our covenant, or the harm which will come from breaking down recognized standards.
    The essence of Article I, Paragraph 1 of the New Jersey Constitution, as well as the Fourteenth Amendment, is simple: like citizens in like circumstances are to be treated equally in the eyes of the law. The present law violates these fundamental constitutional principles. The law is unconstitutional and the court should so recognize.
    POINT FIVE
    THE LAW OF NECESSARY EDUCATON VIOLATES THE STATE AND FEDERAL CONSTITUTION EQUAL PROTECTION CLAUSE.

    The court must find that the law on Necessary Education, violates the Equal Protection Clauses of the United States and New Jersey Constitutions. The law on its face is saying, a judge or government knows best for our minor and adult children and can run our lives better than we can. The law allows for the continuation of adult child support and contribution for private education prior to and beyond the age of majority (18). A court could order a parent subject to a support order at the time his or her child is a minor or reached age 18 to pay for adult child support, private education and private college expenses, but could not order a parent not subject to such an order to pay these expenses. As a matter of Constitutional Law, there should be no rational basis for the varied treatment of the class of parents subject to a support order as compared to those parents not subject to such an order. The Law of Necessary Education must fail the rational and strict scrutiny basis test. The State’s interest in private education of a minor or adult is limited to the State Constitution.
    At one time, the New Jersey Courts upheld the Equal Protectection Clause of both the State and Federal Constitution for all of its citizens. In Ziesel v. Ziesel, 115 A. 435 (N.J. 1921), the Court had to determine whether to force non-custodial parents to pay for more expensive private high schools for their minor children. Holding that a father is under no legal duty to send his son to boarding school, the court explained that the father could not be compelled by the courts to pay if he were still married, so he must not be compelled as a non-custodial parent to pay for a private school. Apparently, I can not stand for the position that equitable principles overrule the Constitution. As Judges, your oath requires you to uphold the Constitution. As mentioned above, the Meyer case began the long cascade of cases specifically rejecting a broad Parens Patriae notion that children were held in “common” between the State and the parent. Id. at 401. For whatever reason, New Jersey has taken the opposite approach with N.J.S.A. 2A:34-23(a)(5), Newburgh v. Arrigo, 88 N.J. 529, 545, 443 A.2d 1031 (1982) and Hoefers v. Jones, 288 N.J. Super. 478, (App. Div. 1996), thereby circumventing precedent from the U.S. Supreme Court.
    In cases where there is an intact family, children with parents married and residing together, the Necessary Education Law has no application. In such cases, the parents have no legal obligation to contribute toward private elementary, private high school or college education. In essence, the law permits a burden to be imposed upon one class of citizens—divorced, separated or single parents—that cannot in like circumstances be imposed upon married parents residing together. Parents in this latter class are thus immune from such legal liability. Likewise, the law creates a privilege for one class of citizens-children of divorced, separated or single parents—that is not granted to children whose parents are married and residing together. In consequence, by establishing distinctions based upon the marital status of the parent, law violates the equal protection clauses of both New Jersey and United States Constitutions.
    A state’s interest in forcing only divorcing and noncustodial parents to pay for private education and higher education for a minor or adult child however highly ranked is not totally free from a balancing process when it impinges on other fundamental rights and interests. The liberty of parents to direct the upbringing and education of their children is a fundamental right. What the State of New Jersey continues to disregard is that the state’s interest in education, i.e., creating good citizens…yields to the interest of parents in directing the rearing of their off spring, See Yoder, 406 U.S. at 213. In addition, the law on its face egregiously places different burdens and benefits placed on persons similarly situated violate the guarantees of equal protection. Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434 (4,5) (1981), South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S. Ct. 1180 (1999), Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620 (1996).
    This law establishes distinctions that are wholly unrelated to the legitimate state interest that the law seeks to advance. The equal protection provision in the New Jersey Constitution “prohibits the State of New Jersey from adopting statutory classifications that treat similarly situated people differently.” (Sanchez v. Dep’t of Human Servs., 314 N.J. Super. 11, 30 (App. Div. 1998)).
    As I see it, the state’s interest in having a public policy and social goal for family courts to encourage private and higher education does not apply evenhandedly to all New Jersey Parents. It only applies to those parents who are getting divorced or never married. This represents arbitrariness and classification. A citizen of the United States has a perfect constitutional right to equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right Saenz v. Roe, 526 U.S. 489,(1999).
    The law is discretionary, but is routinely implemented upon a showing of need for parental assistance on the part of the child attending private elementary, private high school and college. The objective of the law is to provide a legal remedy for compelling parents to support their children who attend private schools, college and who are in need of such support (thereby advancing the state’s interest in having a well-educated populace), class distinctions restricting or limiting the law application must have a rational relationship to the law’s objective. The plight of a child of divorced parents or single parents, attending a private school or college and in need of parental support is in no way different from the plight of a child of married parents, also attending private school or college and in need of parental support. The present law also conflicts with Constitutional Rights of Parents. In Meyer v. Nebraska, the United States Supreme Court characterized the right of parents to bring up their children “as essential to the orderly pursuit of happiness by free men.” 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923) (citations omitted). Similarly, the Court explained that “this [family] liberty may not be interfered with, under the guise of protecting the public interest” and held that parents have a fundamental right to control the education of their children. 262 U.S. at 399-400.
    A child who need’s parental support for private education or college and whose parents are divorced or single are not “more needy” simply because their parents are divorced or single, in contrast to children in like circumstances whose parents happen to be married. Likewise, child in the same situation whose parents are married are not “less needy” simply because their parents are married. Need is need and it should not be contingent on the marital status of the needy students parents. The Law of Necessary Education provides child of divorced or single parents a greater legal right to a private or college education than a child whose parents remain married. In essence, this law has created an additional category of Compulsory Education Law concerning private education to a select class of citizens.
    With regard to college education, a Florida appellate court in 1978 decli

  • Giovanni

    continued:

    With regard to college education, a Florida appellate court in 1978 declined to order a divorced parent to pay for his adult emancipated daughter’s undergraduate college tuition:
    We agree that a trial court may not order post-majority support simply because the child is in college and the divorced parent can afford to pay. [citations omitted]
    While most parents willingly assist their children in obtaining a higher education that is increasingly necessary in today’s fast changing world, any duty to do so is a moral rather than a legal one. Parents who remain married while their children attend college may continue supporting their children even beyond age twenty-one, but such support may be conditional or may be withdrawn at any time, and no one may bring an action to enforce continued payments. It would be fundamentally unfair for courts to enforce these moral obligations of support only against divorced parents while other parents may do as they choose. Grapin v. Grapin, 450 So.2d 853, 854 (Fla. 1984).
    In South Carolina, a Court was previously allowed to order college support. Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979); West v. West, 309 S.C. 28, 419 S.E.2d 804 (Ct. App. 1992) (jurisdiction of the family court is permitted in cases of children over 18 years of age where exceptional circumstances warrant it; family court judge may require a parent to contribute that amount of money necessary to enable a child over 18 to attend high school and four years of college, where there is evidence that: (1) the characteristics of the child indicate that he or she will benefit from college; (2) the child demonstrates the ability to do well, or at least make satisfactory grades; (3) the child cannot otherwise go to school; and (4) the parent has the financial ability to help pay for such an education). In 2010, a South Carolina Supreme Court struck down the law of the land mandating post-majority support as a violation of the Constitution’s Equal Protection Clause after 30 years of being the law of the land. It reasoned that there was no rational basis for the varied treatment of the class of parents subject to a support order as compared to those parents not subject to such an order. The statute at issued, failed the rational basis test. See Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010).
    The State of New Jersey lacks a legitimate governmental interest–to say nothing of a compelling one–in second-guessing a fit parent’s decision regarding private education of a child or an adult child. In Farrington v. Tokushige, 273 U.S. 284 (1927) at 298, the Court again upheld parental liberty by striking down legislation which the Court admitted would have destroyed most, if not all private schools. The Court noted that the parent has the right to direct the education of his own child without unreasonable restrictions. In support of this assertion the Court explained,
    The capacity to impart instruction to others is given by the Almighty for beneficent purposes and its use may not be forbidden or interfered with by government — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety.

    The parents’ right to instruct their children clearly takes precedence over the state’s regulatory interest unless the public safety is endangered. The Law of Necessary Education violates this principal. It may be inconvenient for an adult child to pay his or her own way through private college, but there is no legal reason whatsoever why the adult child should not do so if otherwise healthy and able-bodied. An adult child who attends college, but is capable of working, obtaining student loans and grants is not in need of support merely because he or she is in school. The decision of parents as to whether or not the adult children should go to college, and who shall pay for those educational expenses are matters of right that are purely personal, private, moral and fundamental to the parents and to the child. While some parents are willingly assist their children in obtaining a higher education that is increasingly necessary in today’s fast changing world, any duty to do so is clearly personal, private, moral and a fundamental right, rather than a legal one for the courts to intervene.
    The parents who remain married while their children attend college may continue supporting their children even beyond age twenty-one, but such support may be conditional or may be withdrawn at any time, and no one may bring an action to enforce continued payments. Moreover, when the child reaches the age of Majority, the adult child no longer suffers from the disabilities that previously mandated court protection, such as the inability to manage affairs or enjoy civic rights.
    The essence of Article I, Paragraph 1 of the New Jersey Constitution, as well as the Fourteenth Amendment, is simple: like citizens in like circumstances are to be treated equally in the eyes of the law. The present law violates these fundamental constitutional principles. The law is unconstitutional and the court should so recognize.
    POINT SIX
    THE DOCTRINE OF NECESSARY EDUCATION INFRINGES UPON A SELECT CLASS OF PARENTS RIGHTS TO FREEDOM OF PERSONAL CHOICE, FREE WILL AND RIGHT TO PRIVACY
    The Doctrine of Necessary Education violates the Due Process Clause of the 14th Amendment to the United States Constitution, as private elementary, private high school and college education is a matter of freedom of personal choice, free will and privacy in which the State can not enter. In a Constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed. See Board of Regents v. Roth, 408 U.S. 564, 572. The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the “liberty” protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, Shapiro v. Thompson, 394 U.S. 618, 629-630; United States v. Guest, 383 U.S. 745, 757-758; Carrington v. Rash, 380 U.S. 89, 96; Aptheker v. Secretary of State, 378 U.S. 500, 505; Kent v. Dulles, 357 U.S. 116, 127; Bolling v. Sharpe, 347 U.S. 497, 499-500; Truax v. Raich, 239 U.S. 33, 41. [p169]. Several decisions of the Supreme Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. See Roe v. Wade, 410 U.S. 113, 151 (1973).
    In the early 1920s, the United States Supreme Court first reviewed the rights, liberties and obligations of parents to direct the upbringing of their children. Two important decisions, Meyer v. Nebraska and Pierce v. Society of Sisters, established a legacy which was followed by a series of decisions holding that parenting is a fundamental constitutional right, and among “the basic civil rights of man. “Choices about marriage, family life, and the upbringing of children are among those rights the Court has ranked as “of basic importance in our society,” and as sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect.
    PARENTAL RIGHTS FOR ALL U.S. CITIZENS
    Meyer v Nebraska
    262 US 390 (1923)
    “No state … shall deprive any person of life, liberty or property without due process of law.” “While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
    Pierce v Society of Sisters
    268 US 510 (1925)
    The liberty of parents and guardians to direct the upbringing and education of children was abridged by a proposed statute to compell public education. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
    Skinner v Oklahoma
    316 US 535 (1942)
    “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”
    Prince v Massachusetts
    321 US 158 (1944)
    It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
    Griswold v Connecticut
    381 US 479 (1965)
    The 4th and 5th Amendments were described as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” The Court referred to the 4th Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” Reaffirming the principles set forth in Pierce v. Society of Sisters and Meyers v Nebraska.
    Loving v Virginia
    388 US 1 (1967)
    In this case involving interracial marriage, the Court reaffirmed the principles set forth in Pierce and Meyers, finding that marriage is one of the basic civil rights of man, fundamental to our very existence and survival. “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
    Wisconsin v Yoder
    406 US 205 (1972)
    In this case involving the rights of Amish parents to provide for private schooling of their children, the Court held: “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”
    Stanley v Illinois
    405 US 645 (1972)
    The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and protection. The integrity of the family unit has found protection in the Due Process Clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment, and the 9th Amendment
    Cleveland Board of Education v La Fleur
    414 US 632 (1974)
    The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. There is a right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
    Moore v East Cleveland
    431 US 494 (1977)
    The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. A host of cases, tracing their lineage to Meyer v. Nebraska and Pierce v. Society of Sisters have consistently acknowledged a “private realm of family life which the state cannot enter.” When the government intrudes on choices concerning family living arrangements, the Court must examine carefully the importance of the governmental interests advanced.
    Smith v Organization of Foster Care Families
    431 US 816 (1977)
    In this action, individual foster parents and a foster parents organization, sought declaratory and injunctive relief against New York State and New York City officials, alleging that the statutory and regulatory procedures for removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the 14th Amendment. The ruling contains an analysis of the rights of natural parents as balanced against the rights of foster parents, as well as a comprehensive discussion of foster care conditions.
    Quilloin v Walcott
    434 US 246 (1978)
    We have little doubt that the Due Process Clause would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the “best interests of the child.”
    Lassiter v Department of Social Services
    452 US 18 (1981)
    The Court’s decisions have by now made plain that a parent’s desire for and right to “the companionship, care, custody, and management of his or her children” is an important interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.
    Santosky v Kramer
    455 US 745 (1982)
    The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the 14th Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

    Planned Parenthood of Southeastern Pa. v. Casey
    505 U.S. 833, 847 (1992)

    The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.
    M. L. B. v. S. L. J.
    519 US 102, 117 S. Ct. 555 (1996)
    Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as “of basic importance in our society,” rights sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect. This case, involving the State’s authority to sever permanently a parent-child bond, demanded the close consideration the Court has long required when a family association so undeniably important was at stake.

    The present law is a rigid and repressive control over the private family matters, despite the laws intention. The citizens of this State do not want family liberty being interfered with, under the guise of protecting the public interest and it’s time for this State and the Courts to recognize that parents have a fundamental right to control the education of their children and that private education is as matter of freedom of personal choice.
    The decisions of a fit parent regarding the upbringing and education of his or her child are constitutionally entitled to a heavy presumption of validity. This presumption embraces and protects decisions by a fit parent on whether or not to contribute towards private education for their minor or adult child. Absent a showing of significant and immediate harm to the child, the decision of the parent regarding private education or necessary education should be immune from governmental second guessing or judicial review. The law in question penalizes the exercise of fundamental rights of parents to control the education of their children is unconstitutional absent a compelling state interest directly served by the statute. Sanchez v. Department of Social Services, 314 N.J. Super. 11, 21-24 (App. Div. 1998)
    The privacy rights of the state constitution protects from government interference are those “choices that bear so vitally upon a matter of deep personal privacy [that they] may . . . be considered an integral aspect of the ‘natural and unalienable right’ of all people to enjoy and pursue their individual well-being and happiness.” In re Grady, 85 N.J. 235, 250 (1981). Thus, “any discussion of the right of privacy must focus on the ultimate interest which protection the Constitution seeks to ensure: the freedom of personal development.” Saunders, 75 N.J. at 213 (1977).
    The term “Private,” means:
    1
    a : intended for or restricted to the use of a particular person, group, or class b : belonging to or concerning an individual person, company, or interest c (1) : restricted to the individual or arising independently of others (2) : carried on by the individual independently of the usual institutions ; also : being educated by independent study or a tutor or in a private school d : not general in effect e : of, relating to, or receiving hospital service in which the patient has more privileges than a semiprivate or ward patient
    2
    a (1) : not holding public office or employment
    (2) : not related to one’s official position : personal b : being a private
    3
    a : withdrawn from company or observation
    b : not known or intended to be known publicly : secret c : preferring to keep personal affairs to oneself : valuing privacy highly d : unsuitable for public use or display

    See http://www.merriam-webster.com/dictionary/private. The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. See Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).
    Justice Scalia, dissenting in Troxel, stated: “A right of parents to direct the upbringing of their children is among the “Unalienable Rights” with which the Declaration of Independence proclaims “all Men . . . are endowed by their Creator.” This right is among the “other rights retained by the people,” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue that the state has limited power to interfere with parents’ authority over the rearing of their children, absent of any harm. I do not believe that the power which the Constitution confers upon judges entitles them to deny legal effect to laws that infringe upon what is an unenumerated right. The present law violates these fundamental constitutional principles. The law is unconstitutional and the court should so recognize.

    POINT SEVEN
    A CONFLICT OF INTEREST EXISTS AS THE STATE HAS A FINANCIAL INTEREST TO GENERATE REVENUE BEYOND THE AGE OF MAJORITY

    As of 1998, the U.S. House Ways and Means Committee admitted, “Most States make a profit on their child support program.” The committee also noted, “States are free to spend this profit in any manner the State sees fits.” [Committee Report, page 596] It is undisputed that federal incentive payments to the States under a Social Security program, pays two dollars for every dollar collected by the State for State-imposed child support orders. [42 U.S.C. §658a]

    Pursuant to N.J.S.A. 52:13D-23(e)(4), it provides that a state officer or employee shall not act in his official capacity in a matter wherein he has a direct or indirect personal financial interest that might be expected to impair his objectivity or independence of judgment. While I can appreciate the federal incentives this State receives for enforcement on minor children, the same can not be said about adult children and parents paying adult child support and college contribution. As citizen of this State, I respectfully reject the notion that this State should receive federal incentives for collecting adult child support. Perhaps, this is the reason the State contradicts itself when they acknowledge that parents are not under a duty to support children after the age of majority. The State has found another way to generate revenue that focuses on divorcing and single parents.
    http://en.wikipedia.org/wiki/Conflict_of_interest, defines: a conflict of interest (COI) occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in the other. In my view, I see adult child support as a motivation for receiving continued federal incentives beyond the Age of Majority.
    The law on Necessary Education fails to recognize that once a child reaches the age of Majority, the adult child no longer suffers from the disabilities that previously mandated court protection, such as the inability to manage affairs or enjoy civic rights granted in NJSA § 9:17B-3. There can be no dispute that any adult child in this State has the ability to go to college with or without parents help. They have the ability to apply for grants, student loans, work at a college in exchange for free tuition, obtain employment or join the military. Whether or not a parent wishes to contribute or not contribute is between the parents and not for the Courts to decide.
    The term “age of majority,” is the threshold of adulthood as it is conceptualized (and recognized or declared) in law. It is the chronological moment when minors cease to legally be considered children and assume control over their persons, actions, and decisions, thereby terminating the legal control and legal responsibilities of their parents or guardian over and for them. The vast majority of countries set majority at 18, but ages as low as 15 and as high as 21 also exist. The word majority here refers to having greater years and being of full age; it is opposed to minority, the state of being a minor. The law in a given jurisdiction may never actually use the term “age of majority” and the term thereby refers to a collection of laws bestowing the status of adulthood. The age of majority is a legally fixed age, concept, or statutory principle, which may differ depending on the jurisdiction, and may not necessarily correspond to actual mental or physical maturity of an individual.
    In practical terms, there are certain specific actions which a person who attains the age of majority is permitted to take, which they could not do before. These may include entering into a binding contract, buying stocks, voting, buying and/or consuming alcoholic beverages, driving motor vehicles on public roads, and marrying without obtaining consent of others. The ages at which these various rights or powers may be exercised vary as between the various rights and as between different jurisdictions. For example, the ages at which a person may obtain a license to drive a car or consume alcoholic beverages vary considerably between and also within jurisdictions. Age of majority should not be confused with the age of sexual consent, the driving age, the voting age, etc., which all may sometimes be higher or lower than majority. Although a person may attain the age of majority in a particular jurisdiction, he or she may still be subject to age-based restrictions regarding matters such as the right to vote or stand for elective office, act as a judge, and many others. See http://en.wikipedia.org/wiki/Age_of_majority
    The Newburgh decision circumvents the plain meaning of age of majority. The law allows judges to make minor child and adult child rearing educational decisions over the objection of fit parents. On its face, this violates due process, because judges do not have this authority to make a better decision, absent of harm. There is no doubt that the questioned statute and case law treats minor and adult children of divorce and single parents differently from minor and adult children whose parents happened to be married. The law and case law court refers this as Compulsory Necessary Education, that generally commands that divorcing and noncustodial parents be primary responsible for adult child support, private and private higher education, before an adult child undertakes the responsibilities of being an adult. The law further commands that adult children of divorce and single parents, have a greater right to a college education, as compared to adult children who happen to be married. It is my opinion that there is no basis that would justify circumventing the law on the age of majority. Let’s be honest, is there any other law in this State, that would allow anyone to circumvent the law? The statute and case law is so beyond a reasonable doubt in conflict with constitutional provisions that it should be stricken down as invalid.
    CONCLUSION
    For reasons set forth above, the Law of Necessary Education should be declared as a matter of Constitutional Law, unconstitutional

  • Kristi McLeod

    It’s important to understand that this decision in no way ‘requires’ that a family court judge order college expenses. It simply gives that authority back to the family court judge so that he/she can listen to the arguments and make a determination as to whether college expenses is an appropriate ruling based on the facts and evidence provided for in each case.
    In the McLeod case we provided written evidence of a promise from Collin’s father to contribute to our son’s college expenses. The family court judge in our case would not even listen to or look at the evidence because of the Webb v Sowell decision.
    I don’t believe that an award for college expenses is appropriate in every case. However, every person should have an opportunity to present their case in its entirety and have a family court judge rule on it based on all of the evidence.

    • Tracy

      Kristi please contact me.

  • Christopher

    Hi Greg, did this reversal of Webb have an effect on your previous argument that the Family Court does not have the authority to initiate a new child support order for an 18 year old in high school after the child to be supported turns 18?

    Where do you think that particular Webb language on continuation of support after the age of 18 stands at this point?

    Thanks.

    Christopher

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