Volume 40 Rutgers Law Record 2012-2013
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R
UTGERS LAW RECORD
The Internet Journal of Rutgers School of Law | Newark
www.lawrecord.com
Volume 40 2012-2013
N
ON-CUSTODIAL PARENTS’ RIGHTS TO THEIR CHILDREN’S COLLEGE RECORDS
Daniel R. Bernard*
In the song “Gold Digger,” Kanye West laments, “18 years, 18 years [a]nd on her 18th
birthday he found out it wasn't his.”
1
This represents the perception in American society that a
parent’s legal obligation to support their child ends when the child reachesthe age of majority. New
Jersey has defined majority to be, “every person 18 or more years of age shall in all other matters
and for all other purposes be deemed to be an adult…”
2
Pennsylvania defines majority as “either
eighteen years of age or when the child graduates from high school, whichever comes later.”
3
Most
other states, after the passage of the twenty-sixth amendment to the U.S. Constitution, lowered the
age of majority from 21 to 18 as well.
4
Since in most states the age of majority is 18, for parents who remain married throughout
their children’s college years, for the most part, there is no legal requirement to contribute to the
*J.D. expected May 2013, Rutgers School of Law-Newark; BBA 2008, Temple University. Special thanks to Kevin
Mazza and James Yudes of James P. Yudes P.C. for the assignment that led to my discovery of this topic.
1
KANYE WEST, Gold Digger, onLATE REGISTRATION (Roc-A-Fella, Def Jam 2005).
2
SeeN.J. STAT. ANN. § 9:17B-3 (West).
3
Style v. Shaub,955 A.2d 403, 408 (Pa. Super. Ct. 2008) (citing Blue v. Blue, 616 A.2d 628 (1992)).
4
See Marian F. Dobbs, Determining Child & Spousal Support § 4:84.
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college expenses of their children.
5
However, people who divorce may end up having to pay a
portion of their child’s college expenses, even though college students are typically past the age of
majority.
6
If a divorced parent is required to contribute to their child’s college cost, should they be
able to know what courses the student took and what grades they received? This is the question the
court was faced with in Van Brunt v. Van Brunt.
7
But first, as you are about to see Kanye West’s lyric maybe should have been “22 years, 22
years and at her college graduation he found out it wasn’t his.”
The responsibility of non-custodial parents to contribute to the costs of their
children’s college education.
Family law differs state to state, so, a non-custodial parent’s support obligation varies state to
state. For example, in New Jersey a divorced parent is not always required to contribute to his or her
child’s education.
8
The New Jersey Supreme Court stated that the relevant factors to consider are:
(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.
9
5
See, Jay M. Zitter, Postsecondary education as within nondivorced parent's child-support obligation, 42 A.L.R.4th 819 (1985)
6
SeeResponsibility of noncustodial divorced parent to pay for, or contribute to, costs of child's college education, 99 A.L.R.3d 322 (1980).
7
Van Brunt v. Van Brunt, 419 N.J. Super.327 (N.J. Super. Ct. Ch. Div. 2010).
8
Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).
9
Id.
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These factors, having been first set out in Newburgh v. Arrigo,
10
are referred to by courts as the
Newburgh factors.
In Kiken v. Kiken, the Court referring to the Newburgh factors stated that “[s]ix years later, the
Legislature essentially approved those criteria when amending the support statute.”
11
The support
statute was amended to read, in pertinent part:
a. In determining the amount to be paid by a parent for support of the child and the
period during which the duty of support is owed, the court in those cases not
governed by court rule shall consider, but not be limited to, the following factors:(1)
Needs of the child; (2) Standard of living and economic circumstances of each
parent; (3) All sources of income and assets of each parent; (4) Earning ability of
each parent, including educational background, training, employment skills, work
experience, custodial responsibility for children including the cost of providing child
care and the length of time and cost of each parent to obtain training or experience
for appropriate employment; (5) Need and capacity of the child for education,
including higher education; (6) Age and health of the child and each parent; (7)
Income, assets and earning ability of the child; (8) Responsibility of the parents for
the court-ordered support of others; (9) Reasonable debts and liabilities of each child
and parent; and (10) Any other factors the court may deem relevant.
12
The Kiken Court further stated that:
The effect of the amendment is to provide an explicit statutory basis for a support
order directing a parent to contribute to the education of a child. Thus, both this
Court and the Legislature have confirmed a child's need for higher education as an
appropriate consideration in determining the parental obligation of support.
13
This indicates that, in New Jersey, a judge must balance the statutory factors with the factors set out
by the New Jersey Supreme Court to determine whether a parent is obligated to support their child
past the age of majority.
In Gac v. Gac the plaintiff mother, attempted to recoup the college expenses from the
defendantfather, after their daughter, Alyssa, had already completed college.
14
The court held that
10
Id.
11
Kiken v. Kiken, 149 N.J. 441, 449 (1997) (citingN.J. STAT. ANN. §2A:34-23(a) (West)).
12
N.J. STAT. ANN. §2A:34-23(a) (West).
13
See Kiken, supra note 10, at 561.
14
Gac v. Gac, 186 N.J. 535, 537 (2006).
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the father did not have to contribute to Alyssa’s college expenses.
15
The court applied the Newburgh
factors
16
and determined that had the parties not divorced, the defendant probably would not have
contributed to Alyssa’s college expenses.
17
The court further reasoned that:
“[t]he failure of both plaintiff and Alyssa to request that defendant assist in paying Alyssa's
educational expenses at a time that would have enabled defendant to participate in Alyssa's
educational decision as well as to plan for his own financial future weighs heavily against
ordering him to contribute to her educational expenses.”
18
This case demonstrates that a non-custodial parent’s obligation to contribute is not automatic; in
order for a parent to be required to contribute to college expenses they must be involved in the
planning and decision making process leading up to the student/child’s enrollment in college.
In New York, the first case to address the issue of whether a non-custodial parent has a
support obligation including college tuition was the 1950 case Herbert v. Herbert.
19
The court stated
that, “[o]ne must consider the actual people involved: the elements that make up their rearing, their
breeding, their personality, their aptitudes, their ambitions, their environment.”
20
The court further
opined, “[c]hildren of broken homes are entitled, from their parents, to even greater consideration
than children, fortunately, in happy homes.”
21
Ultimately the court held that under the exceptional
circumstances of the case,both parties’ were college educated and came from wealthy backgrounds, a
college education was a necessity for the parties’ children.
22
Later in Hoffman v. Hoffman, the court summarized the progression of college support
litigation up to that point in New York.
23
Citing Connolly v. Connolly, the court stated “[a]bsent a
voluntary agreement to furnish such expenses, a petitioner requesting college expenses must prove
15
Id. at 547.
16
See Kiken, supra note 10.
17
Gac, 186 N.J. at 547.
18
Id. at 546.
19
Herbert v. Herbert 98 N.Y.S.2d 846 (1950).
20
Id. at 517.
21
Id.
22
Id. at 517-18.
23
Hoffman v. Hoffman, 497 N.Y.S.2d 259 (Sup. Ct. 1985).
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the existence of special circumstances.”
24
The court went on to list situations that other courts had
deemed special circumstances.
25
Such as, both of the students’ parents were college graduates, both
parents could clearly afford to support the children through college, the two oldest children of the
marriage attended college prior to the divorce, the student possessed sufficient academic ability, the
student had attended a private college preparatory school, the student had been raised in the type of
economic environment where their parents not paying for college would be unreasonable, the
student had been raised around other children who will go to college and it would be strange for the
student not to go to college, the children had been spoiled and never denied anything within their
parent’s resources, and within the student’s cultural, social or economic environment a college
degree would be a prerequisite for attaining suitable employment.
26
In McKay v. McKay, an Indiana case, the court reasoned that,
Under Indiana law, there is no absolute legal duty on the part of parents to provide a
college education for their children. However, the statutory authorization for the
divorce court to order either or both parents to pay sums toward their child's college
education constitutes a reasonable manner in which to enforce the expectation that
most families would encourage their qualified children to pursue a college education
consistent with individual family values. In determining whether to order either or
both parents to pay sums toward their child's college education, the court must
consider whether and to what extent the parents, if still married, would have
contributed to the child's college expenses.
27
Perhaps surprisingly, the Court in McKay held that the father did not have to further contribute to
his son’s college expenses because, although the father attempted to establish a father/son
relationship, the son was not interested.
28
Since the son had refused a relationship the court felt it
was only fair to relieve the father of his support obligation.
29
24
Id. at 703 (citing Connolly v. Connolly, 443 N.Y.S.2d 661 (N.Y. App. Div. 1981).
25
Id.
26
Id.
27
McKay v. McKay, 644 N.E.2d 164, 166 (Ind. Ct. App. 1994) (internal citations omitted).
28
Id. at 165.
29
Id.
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The obligation to pay for college expenses is not solely a burden imposed on people of
means. In a 2004 case in Iowa, a court held that a father’s contribution to his children’s college
expenses should be $300 a year.
30
A student does not have to be continually enrolled for the parent’s support obligation to
continue.
31
In Harris v. Williams, a Missouri case, the court reasoned that, “[e]ven if attendance is not
continuous, a court may find that a parent's support obligation shall continue if all of the following
elements are present: 1) the interruption from enrollment is temporary; 2) there is an evident intent
to re-enroll; and 3) there are manifest circumstances which prevented continuous enrollment.”
32
In
this case, the manifest circumstance was that the student lost his financial aid from the school, and
truly did not know how else to secure funding.
33
As is now readily apparent, each state sets out its own requirements of support during
college, mainly based on the parent’s ability to contribute. Although, there are many ways parents
can be relieved of their obligation to pay their child’s college expenses, the main way is for the child
to be considered emancipated.
What constitutes emancipation?
Emancipation is “the conclusion of the fundamental dependent relationship between parent
and child.”
34
In New Jersey, emancipation does not occur when the child reaches the age of
majority.
35
In some cases a parent may have a child that never becomes emancipated.
36
In Newburgh,
the court reasoned that, “[e]mancipation can occur upon the child's marriage, induction into military
30
In re Marriage of Neff, 675 N.W.2d 573, 580 (Iowa 2004).
31
Harris v. Williams, 72 S.W.3d 621, 624 (Mo. Ct. App. 2002).
32
Id. at 624.
33
Id.
34
Dolce v. Dolce, 383 N.J. Super.11, 17 (App.Div.2006).
35
Id.
36
“The obligation to pay support for a child who has not been emancipated by the court shall not terminate solely on
the basis of the child's age if the child suffers from a severe mental or physical incapacity that causes the child to be
financially dependent on a parent. The obligation to pay support for that child shall continue until the court finds that
the child is relieved of the incapacity or is no longer financially dependent on the parent.” N.J.
STAT. ANN. § 2A:34-23.
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service, by court order based on the child's best interests or by attainment of an appropriate age.
Although emancipation need not occur at any particular age, a rebuttable presumption against
emancipation exists prior to attaining the age of majority, now 18.”
37
In New York, “emancipation has been defined as the renunciation of legal duties by a parent
and the surrender of parental rights to a child. Emancipation of a child may occur by operation of
law as where the parent's conduct is inconsistent with the performance of parental obligations. The
burden of proof as to emancipation is on the one asserting it.”
38
In Indiana, the duty to support a child ceases when a child turns 21 or under the following
circumstances: “(1) is on active duty in the United States armed services;(2) has married; or(3) is not
under the care or control of:(A) either parent; or (B) an individual or agency approved by the court;
the court shall find the child emancipated and terminate the child support.”
39
However, the statute
also states that a child will not be deemed emancipated if any of those circumstances has not
occurred and the child has been enrolled in secondary or post-secondary school within the past four
months.
40
Public Policy: Why Do Courts Expect Parents to Contribute?
The most apparent reason courts would compel parents to contribute to their child’s college
expense is that, as a society, we value college education. The most common argument is that a
college education is importantbecause college graduates significantly out earn high school graduates.
A Bureau of Labor Statistics study showed that on average college graduates, in 2009, earned $1,025
a week, while high school graduates on average earned $626 a week.
41
That same report showed that
37
Newburgh, 88 N.J. at 543 (internal citations omitted).
38
Gittleman v. Gittlemen, 81 A.D.2d 632, 633 (App.Div.1981).
39
IND. CODE. § 31-16-6-6 (2008).
40
Id.
41
Education pays: More education leads to higher earnings, lower employment, OCCUPATIONAL OUTLOOKS QUARTERLY, Summer
2012, B
UREAU OF LABOR STATISTICS (2010), http://www.bls.gov/opub/ooq/2010/summer/oochart.pdf.
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the unemployment rate, in 2009, was 5.1% for college graduates, and 9.7% for high school
graduates.
42
According to Marcelina Hardy, in her article “7 Benefits of Earning a College Degree,” in
addition to earning potential, there are six other benefits of a college degree.
43
One reason is health
benefits, citing a 30 year study conducted by BMI Health, having a college degree has been linked to
lower blood pressure;
44
also a 2006 study published by Carnegie Mellon University found that people
with a college degree have lower levels of a stress hormone called cortisol.
45
Furthermore, according
to a 2008 study published in the Journal of the National Cancer Institute, both men and women
with a college degree have a lower risk of developing prostate, colorectal, breast and lung
cancer,than their non-degree holding counterparts.
46
In addition, according to a College Board report
college graduates are less likely to smoke and more likely to exercise than high school graduates.
47
Another College Board report stated that 70% of college graduates have employer provided health
benefits in comparison to only 50% of high school graduates.
48
To round out the list college
graduates also enjoy better job satisfaction, better job security and healthier children.
49
The question still remains whether it is fair for divorced people to be mandated to contribute
to their child’s college expenses. According to U.S. News and World Report, 63% of college
graduates received some support from their parents.
50
The study also showed that only 42% of
students that didn’t receive any financial support from their parents were able to graduate.
51
Also
according to U.S. News and World Report, 34% of college students do not borrow any money at all
42
Id.
43
Marcelina Hardy, 7 Benefits of Earning a College Degree, YAHOO! EDUCATION, available at
http://education.yahoo.net/articles/benefits_of_higher_education.htm.
44
Id.
45
Id.
46
Id.
47
Id.
48
Id.
49
Id.
50
Should Your Kids Pay for College Themselves?, http://www.usnews.com/education/articles/2009/12/11/should-your-kids-
pay-for-college-themselves.
51
Id.
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for college.
52
Since a majority of students receive support, and since without the support the odds of
the student graduating are not in the student’s favor, a parent’s mandatory contribution, when
financially feasible, does appear fair.
Marital Settlement Agreements
Settlement of litigation before trial is an important public policy concern.
53
For example,in
New Jersey attorneys must advise their clients about Complimentary Alternative Dispute
Programs.
54
In N.H. v. H.H., the court stated “[s]ettlement of litigation ranks high in the pantheon of
public policy. This is particularly true in matrimonial matters, where settlement agreements, being
‘essentially consensual and voluntary in character [,] ... [are] entitled to considerable weight with
respect to their validity and enforceability.’”
55
Settling matrimonial cases through incorporating a
marital settlement agreement in the divorce decree is especially attractive to parties in a divorce for
many reasons. First, like all settlements, martial settlement agreements save the parties money by
minimizing theissues that need to be litigated. Second, a marital settlement agreement allows parties
to decide the terms of the divorce rather than having to live with a judge’s decision about,among
other things, which party gets which assets and what the parties’ visitation schedule with their
children will be. Marital settlement agreements are important in cases involving college expenses
because often a non-custodial parent’s college contribution obligation is not court mandated,
butincorporated into their marital settlement agreement.
56
However, whether court mandated or
incorporated into a Marital Settlement Agreement, the obligation is still the same, and for purposes
of non-custodial parents’ rights is indistinguishable.
52
A Degree is Well Worth the Time, Cost and Effort, http://www.usnews.com/debate-club/is-a-college-degree-still-worth-
it/a-degree-is-well-worth-the-time-cost-and-effort.
53
N.H. v. H.H.,418 N.J.Super. 262, 279 (2011).
54
R. 1:40-1.
55
N.H., 418 N.J.Super. at 279 (internal citations omitted).
56
See Van Brunt, Infra, note 61.
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A key aspect to marital settlement agreements is their likelihood of enforcement. In Ocean
County Chapter, Inc. of Izaak Walton League of America v. Department of Environmental Protection, the court
stated, “[s]ettlements are generally upheld absent clear and convincing evidence of fraud or other
compelling circumstances.”
57
The Federal Educational Rights and Privacy Act (FERPA)
58
As defined by the Department of Education, “[t]he Family Educational Rights and Privacy
Act (FERPA) is a Federal law that protects the privacy of student education records. The law applies
to all schools that receive funds under an applicable program of the U.S. Department of
Education.FERPA gives parents certain rights with respect to their children's education records.
These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond
the high school level.”
59
FERPA provides that, “a school may not generally disclose personally
identifiable information from an eligible student's education records to a third party unless the
eligible student has provided written consent.”
60
In other words, the parent of a high school student
has the right to request information such as grades and courses taken, but when the student enters
college, that right transfers from the parent to the student and the school may not release such
information as grades or courses undertaken to a parent or any other third party without the
student’s consent.
Van Brunt v. Van Brunt
In Van Brunt v. Van Brunt the competing interests of a college student’s privacy in her
collegiate records and a parent’s desire to have information about the student’s collegeperformance,
57
Ocean Cnty. Chapter, Inc. of Izaak Walton League of America v. Dep’t of Environmental Protection, 303 N.J.Super. 1,
10(1997).
58
Family Educational Rights and Privacy Act, 20 U.S.C.A. § 1232(g).
59
UNITED STATES DEP’T OF EDUC., Family Educational Rights and Privacy Act (Apr. 8, 2011),
http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.
60
UNITED STATES DEP’T OF EDUC., FERPA General Guidance for Students (Feb. 28, 2011),
http://ed.gov/policy/gen/guid/fpco/ferpa/students.html.
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thathe wasfunding, came to a head.
61
In Van Brunt, the Plaintiff was the custodial parent, and
mother, and the Defendant, the father, of two children, K.V. and Melissa.
62
The parties were
divorced on April 10, 2008.
63
In their martial settlement agreement, the parties “incorporated
consensual provisions for child support, college contribution and emancipation relative to both
parties’ children.”
64
The parties also agreed that Plaintiff would consult Defendant on all matters of
importance related to their children’s education.
65
The parties’ agreement provided a definition of
emancipation of, “a child would remain unemancipated if a child continued to attend four academic
years of college.”
66
In 2010, Melissa was over 18 years old and attending Stockton College.
67
The case brought two issues of first impression in New Jersey:
(a) Does a court order requiring an unemancipated college student to produce proof
of college attendance, course credits and grades to his/her parents as a condition for
ongoing child support and college contribution violate the student's right to privacy
under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.A. §
1232g, and 34 C.F.R. § 99.31.
(b) When a non-custodial parent pays court-ordered child support and/or college
costs for an unemancipated college student, is the responsibility to provide that
parent with ongoing proof of college attendance/credits/grades that of (a) the
student, (b) the custodial parent, or (c) both?
68
In April 2010, the Defendant brought a “motion to compel Plaintiff to disclose Melissa’s
college records or to otherwise emancipate Melissa.”
69
At the time, Melissa was 21 years old, thus,
Defendant’s obligation to pay child support was contingent upon Melissa’sstatus as an
unemancipated college student.
70
The Court ordered plaintiff to submit proof of Melissa’s full time
college status, including “(a) a list of all courses taken by Melissa and credits as verified by Melissa's
61
Van Brunt v. Van Brunt, 419 N.J.Super. 327 (N.J.Sup. 2010).
62
Id. at 329.
63
Id.
64
Id. at 330.
65
Id.
66
Id.
67
Id.
68
Id. at 329.
69
Id at 330.
70
Id.
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59
college; (b) copies of Melissa's report cards; and (c) verification of Melissa's school
enrollment.”
71
Plaintiff did not supply the documentation and Defendant again filed a motion for
emancipation.
72
In Plaintiff’s response, she attached only some of the required documents, and the Court
denied Defendant’s motion, stating Melissa “attempted to take a full-time course load in the spring
of 2009 and the fall of 2009, but had not completed the necessary credits.”
73
Although the Court
denied Defendant’s motion, theyordered Plaintiff to provide Defendant with documentation from
the spring 2010 semester, amongst other proofs, and directed Plaintiff to furnish defendant with a
copy of Melissa’s report card after each semester.”
74
The present action commenced when Defendant filed another motion which alleged that
Plaintiff had still not provided him with required proofs of Melissa’s full-time enrollment.
75
Plaintiff
replied that she was unable to obtain the necessary paperwork because of “Melissa’s privacy
rights.”
76
Plaintiff argued that she should not be penalized for Melissa’s failure to provide the proofs
because the obligation to provide the proof of attendance belonged to Melissa.
The Court reasoned that “if, hypothetically, Melissa were not attending college on a fulltime
basis, then absent extenuating circumstances she should be emancipated and defendant’s ongoing
financial obligation to plaintiff should cease. Accordingly, it is critical that defendant has a right to
receive ongoing confirming documentation/information relative to Melissa’s collegiate status.”
77
Generally, FERPA provides Melissa with privacy in her college records.
78
For example the
college could not, without Melissa’s written authorization, provide a grade report to a potential
71
Id.
72
Id.
73
Id.at 331.
74
Id.
75
Id. at 331-32.
76
Id. at 332.
77
Id.
78
Id. at 333.
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60
employer.
79
The court reasoned, “[w]hile FERPA may prevent a parent from obtaining
documentation from a child's college without the child's authorization, the Act does not immunize
an unemancipated student from his/her ongoing responsibility to provide a supporting parent with
verifying documentation of college attendance and performance.”
80
The court also reasoned that, “[a]
parent who is compelled to pay child support or college contribution has a right to ongoing
verification of the child's collegiate status. This information is necessary to determine whether the
child should remain unemancipated. FERPA does not diminish this right.”
81
The court held that, “Melissa has an ongoing obligation to provide defendant with
verification of her collegiate status—including enrollment, course credits, and proof of academic
performance via report cards.”
82
The court also held, “plaintiff has an independent obligation to
obtain the court-ordered educational information from Melissa and to provide this information to
defendant. Since plaintiff is receiving ongoing child support paid by defendant, she has a reciprocal
ongoing duty to provide information to defendant concerning Melissa's full-time collegiate
status.”
83
Finally the court stated that, “[s]hould plaintiff and Melissa fail to comply, defendant may
file a new application for Melissa's emancipation.”
84
Here, the court came to the most fair and equitable resolution. It was unfair for Melissa’s
father to continue to contribute to her college expenses without knowing hergrades, course work, or
enrollment status. Although Melissa is entitled to privacy protection under FERPA, as the court
correctly pointed out, the privacy protection she is afforded is not from having to disclose her
grades from her parents, but rather her school not being allowed to divulge her grades to her
parents. FERPA is a shield that can protect a student from unauthorized dissemination of his or her
79
See 20 U.S.C.A. § 1232g.
80
Van Brunt, 419 N.J. Super at 334.
81
Id.at 333.
82
Id. at 334.
83
Id.
84
Id. at 336.
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61
grades, but cannot be used as a barrier to a court requiring the student to furnish their grades,
especially when the student’s transcript is directly relevant to whether they should remain
unemancipated.
85
Here, the Court has given Melissa the choice of disclosing her school records to
her father and receiving his continued support or maintaining the privacy of her records and
becoming emancipated.
Melissa’s father agreed in his marital settlement agreement that he would contribute to
Melissa’s college expenses until she was emancipated, which put both of her parents in an
unenviable situation. Melissa’s mother was tasked with generating the necessary documents to keep
Melissa unemancipated and Melissa’s father was left with only one recourse when he did not receive
these documents, to petition the court for Melissa’s emancipation. However, he filed three motions
in 2010 to get Melissa emancipated and was unsuccessful each time.
86
Had Melissa’s parents stayed
married, FERPA would still protect Melissa’s privacy in that Stockton College could not release her
grades to her parents. However, both of her parents could have decided to stop paying her college
expenses immediately upon her refusal to divulge her grades. Presumably, if a student, of two
married parents, refused to tell their parents what classes they were taking and what their grades
were the parents could at least threaten tocease paying the student’s college expenses. With the
court’s decision that option has been restored to non-custodial parents as well.
Van Brunt is the only published case to deal with the issue of non-custodial parent’s right to
their children’s college transcripts in New Jersey, New York, Pennsylvania or Connecticut. However,
Missouri faced a similar issue to Van Brunt in Colborne v. Colborne
87
and Mandel v. Eagleton.
88
Missouri’s Response to the Same Issue
85
See id.at 329-30.
86
Id.
87
Colborne v. Colborne, 337 S.W.3d 158 (Mo. Ct. App. 2011).
88
Mandel v. Eagleton, 90 S.W.3d 527 (Mo. Ct. App. 2002).
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In Colborne, the parties were divorced in 1996.
89
The parties’ marital settlement agreement
provided that each would pay half of the college expenses for their children.
90
In August 2007,the
parties’ daughter enrolled in college.
91
The mother paid both her share of the college expenses and
the father’s share and then unsuccessfully attempted to obtain a reimbursement.
92
In 2008, she filed a
motion to get the father to pay his share.
93
The father in turn filed a motion to compel the court to
modify his obligation to pay for his children’s college expenses.
94
The court found that the father
should not have to pay for his daughter’s college expenses because she had failed to meet the
notification requirements to continue receiving child support payments after eighteen, and her
parents were not given college transcripts showing which courses she had taken and what grades she
had earned.
95
The mother appealed.
The court cited the Missouri Statute relating to the situation, which states:
To remain eligible for such continued parental support, at the beginning of
each semester the child shall submit to each parent a transcript or similar official
document provided by the institution of vocational or higher education which
includes the courses the child is enrolled in and has completed for each term, the
grades and credits received for each such course, and an official document from the
institution listing the courses which the child is enrolled in for the upcoming term
and the number of credits for each such course.
Noncompliance with this section relieves the parent from the obligation to
pay child support for the term in which the child4 failed to provide the parent with
the proper documentation.
96
The mother and father both testified that they had not seen an official transcript.
97
The father
asserted that the daughter failed the notification requirement at the beginning of each of her
89
Colborne, 337 S.W.3d at 160.
90
Id.
91
Id.
92
Id.
93
Id.
94
Id.
95
Id. at 161,
96
MO. STAT. ANN.§ 452.340 (West 2012).
97
Colborne, 337 S.W.3d at 162.
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semesters of college.
98
First, the Court ruled that unofficial transcripts printed off the university’s
website and mailed to the father would satisfy the notification requirement.
99
The court then held
that the matter would need to be remanded to the trial court because they had erroneously based
their ruling on the unofficial transcripts being invalid.
100
On remand, the court reasoned that the trial
court would have to determine if the notification requirement was met, and that remand was
necessary because this would be a finding of fact.
101
In Mandel, the parties had one child during their marriage.
102
The parties were divorced in
1985.
103
In 2000, the parties’ son enrolled in college.
104
During the fall semester their son completed
fourteen hours of coursework, in the spring semester he dropped two courses before finals and only
completed ten hours of coursework.
105
In March 2001, the father petitioned the court for
termination of the son’s support, alleging that his son had not provided him with documentation
confirming his college attendance, as required by statute.
106
The trial court found that the father did
not have to pay for the son’s college expenses for the spring 2001 semester because the son violated
the statute by not completing the minimum twelve hours of coursework.
107
The court, however,
stated that the son was not emancipated and the father would be obligated to resume contribution
when the son reached full-time status again.
108
The father appealed.
On appeal, the Court held that the son was emancipated.
109
The Court reasoned that the
son’s noncompliance with the statute was not based on previously accepted manifest circumstances,
stating, “[h]ere, Son dropped two courses at the end of the semester when he realized his grades
98
Id. at 162-63.
99
Id. at 163.
100
Id.
101
Id.
102
Mandel, 90 S.W.3d at 528.
103
Id.
104
Id.
105
Id. at 529.
106
Id.
107
Id. at 529.
108
Id. at 529-30.
109
Id. at 532.
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would be unsatisfactory. Such situations are within a student's control; thus, Son's departure was
voluntary. Accordingly, the fact that the interruption in Son's enrollment was only temporary does
not justify waiver of the continuous enrollment requirement because the interruption was
voluntary.”
110
Conclusion
The issue of whether a non-custodial parent, who is compulsorily contributing to their
child’s college expenses, is entitled to their child’s college records is a fresh issue in both New Jersey
and throughout the country. With the divorce rate at 50%,
111
which isconsistent with the marriage
rate over the last ten years,
112
and more students entering college each year,
113
the issue is bound to
become increasingly more relevant. The number of people in undergraduate institutions rose 39%
between 1999 and 2009.
114
As enrollment rises, it is natural that a significant portion of these
enrollees will be coming from divorced parents. It may be only a matter of time before the issue the
Court was faced with in Van Brunt, will be challenged before the New Jersey Supreme Court.
If confronting this issue, the Supreme Court should follow the Court inVan Brunt. In Van
Brunt, the ruling was fair to both parties and promoted the public policies of both encouraging
college education and allowing students their privacy. Instead of giving Melissa the best of both
worlds by allowing her to not have to disclose her college records to her father and continue to
force him to fund her college experience, the Court followed the intended purpose of FERPA, to
prevent schools from releasing information to third parties, and gave Melissa the choice of either
turning her records over to her father or no longer forcing him to support her. Melissa erred in
110
Id.
111
CENTER FOR DISEASE CONTROL AND PREVENTION, Marriage and Divorce,
http://www.cdc.gov/nchs/fastats/divorce.htm.
112
CENTER FOR DISEASE CONTROL AND PREVENTION, National Marriage and Divorce Rate Trends,
http://www.cdc.gov/nchs/nvss/marriage_divorce_tables.htm.
113
NATIONAL CENTER FOR EDUCATION STATISTICS, Enrollment, http://nces.ed.gov/fastfacts/display.asp?id=98.
114
Id.
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thinking that FERPA was designed to be a free pass to never have to divulge her college records to
anyone.
Initially, it seems like parents who do not divorce have greater rights than parents who
divorce because of the compulsory college contributions of divorced parents. However, when one
considers that college support obligations often stem from marital settlement agreements negotiated
by the parties themselves, and that courts are really just trying to restore the student/child to the
same economic position had their parents not divorced, non-divorced and divorced parents are
essentially in equal positions.
Initially, with the Court’s ruling, it would appear that divorced parents have achieved an
extra right that non-divorced parents do not have; i.e., the compulsory disclosure from their
student/child of their college records. However, upon closer examination, the Court leveled the
playing field by not mandating that students disclose their college records to their parents, but rather
ruling that to stay unemancipated students disclose their records. The distinction is important
because it means that Mr. Van Brunt may not actually get Melissa’s records if she chooses
emancipation. Just like a rebellious student of non-divorced parents could choose to not disclose his
grades to his parents and face whateverconsequences his parents choose to impose, which could
beno longer funding his college education.
Another subtle issue is the struggle that Mrs. Van Brunt andother custodial parents could
face. The Court originally tasked Mrs. Van Brunt to produce Melissa’s college records.
Unfortunately for her, she was just as unentitled to Melissa’s records under FERPA as Mr. Van
Brunt. As the case clearly shows, Mrs. Van Brunt was unable to comply with the Court’s directive
and furnish Mr. Van Brunt with the records he craved, through no fault of her own. Again, the
Court was both fair and helpful to Mrs. Van Brunt, and custodial parents, by mandating that the
duty to provide the college records belongs to both her and the student hoping to remain
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unemancipated. Although, custodial parents would surely prefer that the duty to provide college
records solely belongs to the student, it is more logical to also give custodial parents the duty
because he or she is the person actually receiving the child support, which hopefully is solely used
for the student/child’s benefit.Furthermore, being the custodial parentthey can presumably apply
the necessary pressure to the student to get the records better than a non-custodial parent could.
As far as Melissa and other students are concerned, the ruling may not be exactly what they
wanted, especially if they received less than stellar marks. However, it is more than fair for them to
simply have to provide a copy of their transcripts every semester in order to continue to receive
support. It is probably safe to presume that the 37% of college students who do not receive any
financial support from their parents during college would gladlyfurnish a stranger with their college
transcripts in exchange for support, let alone their parents.
115
In an age where student’s records areall
readily available online twenty-four hours a day, it hardly seems burdensome or unfair for Melissa to
have to provide a copy of this information to her father at the beginning of every semester.
Before this issue reaches state Supreme Courts, the legislature in New Jersey and other
statesshould consider enacting a statute much like Missouri Statute 452.340. If legislatures enacted
such a statute the onus would be off of courts to decide what is equitable and courts would be given
clear guidelines on how a parent can have their college-aged child considered emancipated. Students
would also clearly know what their obligations are to their non-custodial parent to remain
unemancipated. Also if the legislature enacted a statute, someone like Mr. Van Brunt would not have
to file three motions in one year in an attempt to compel the release of information from his
daughter.Interestingly, under similar circumstances the New Jersey court, where no statutory
guidance existed,concluded that the student was not emancipated, while one Missouri case, where
the court had a clear statute to look to, ended in the student being emancipated and the other
115
See Clark, supra note 48.
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Missouri case ended with a remand to determine if the student had provided the necessary
information to avoid emancipation.
Although Kanye West may be worried about finding out too late that the child he is
supporting is not his he can rest easy with the knowledge that he will at least know what courses that
child took in college and the grades they received.
