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The Duty to provide Child Support

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Presentation on theme: "The Duty to provide Child Support"— Presentation transcript:

1 The Duty to provide Child Support
Presented to N.C. child support conference J. David Abernethy PO Box 669 Newton NC August 22, 2012

2 Nature of duty Origin is common law: N.C.G.S. 4-1, Common law declared to be in force. G.S (b) enlarges a mother’s responsibilities Duty of support an obligation imposed by law arising from parental status, rather than being a debt See Alamance Co., 315 N.C. 362, 338 S.E.2d 87

3 Nature of Duty Grandparents share primary liability for support of a grandchild under G.S (b) if their minor, unemancipated child becomes a parent. Liability still exists even though the grandparent is not in loco parentis with the grandchild. Whitman, 139 N.C. App. 44, affd. 353 N.C. 360

4 Scope of duty Guidelines now cover most cases
G.S (c) states general standard: consider child’s reasonable needs and parties’ relative ability to provide support Award reviewed under abuse of discretion standard; Plott, 313 N.C. 63, 326 S.E.2d 863 (1985) . Most often reversed when award exceeds parent’s entire income. Beall, 290 N.C. 669 (1976).

5 Scope of duty - Necessaries
Necessaries traditionally includes food, clothing, and medical care reasonably required for the preservation of health Question whether necessaries or not is a mixed question of law and fact and is submitted to the jury; classes of necessaries are instructed by the court; actual necessity, and whether reasonable price, is for the jury. - Smith, 19 N.C. 26

6 Scope of Duty – continuity of child’s residence with custodial parent
Question - If child is living for a substantial part of the year at a boarding school or college paid for by the non-custodial parent, should the amount of support paid to the custodial parent be adjusted, and if so, for what items?

7 Scope of Duty – continuity of child’s residence with custodial parent
Answer – In the best and most recent case, trial court did not adjust for fixed expenses such as mortgage, insurance, and property taxes, but adjusted other expenses individually without using a uniform percentage; award supported by parent’s affidavit allocating expenses. Affirmed. Koufman, 330 N.C. 93

8 Duty of those other than parents
Those standing in loco parentis may acquire a duty to support. The duty to support should accompany the right to custody. Price v. Howard, 356 N.C. 68.

9 Duty of those other than parents
Secondary liability did not attach to a stepfather in the absence in the record of evidence indicating the natural father’s capability to provide support. (Birth certificate falsely stated stepfather was father, without stepfather’s knowledge.) Moyer, 122 N.C. App. 723

10 Duty of those other than parents
The obligation of a grandfather who signed a bond to remain in full force and effect unless the principal fully carried out the provisions of a child support judgment was not limited by the amount stated in the bond, as the sum stated was intended neither as a penalty nor as liquidated damages. Peeler, 202 N.C. 123

11 Problem Fact pattern: How do you solve a problem like Maria?
The Sharapova family, who lives in North Carolina, seeks your advice concerning seventeen year-old Maria’s possibility of winning the Wimbledon singles championship and its large cash prize.

12 Problem In light of your extensive expertise in the area of child support, prepare during the next ten minutes your presentation on options for legally structuring Maria’s family status, and the effects of each option on ownership of Maria’s past and future earnings and her and her parents’ rights and duties to one another.

13 Problem - Family Status Options
Status quo Emancipation of Maria

14 Problem – Recovery of past paid support
Question: Can Maria’s parents recover from Maria’s newly enlarged estate for child support they paid in the past?

15 Problem – Recovery of past paid support
Answer – Past support can’t be recovered from Maria’s estate Remember, support paid isn’t a debt. Receipt of support doesn’t create a debt. Lee, 245 N.C. 570, 96 S.E.2d 726

16 Problem: poor parents, wealthy child
Now, suppose Mr. and Mrs. Sharapova lose it all their fortunes in a Ponzi scheme and can’t find work. Do they have a remedy to apply funds from Maria’s estate, or Maria’s current earnings, for Maria’s current support?

17 Problem: poor parents, wealthy child
Answer – yes, one procedure would be to appoint a guardian for Maria’s estate Parent is the natural guardian Guardian may apply accruing interest for child’s maintenance – Mull, 100 N.C. 46 Parents have right to control child and receive her wages prior to emancipation – Shoaf, 282 N.C. 287

18 Problem – scope of duty Are Maria’s tennis-related expenses necessaries? Who decides whether to incur them? If she eats a bowl of strawberries and cream at Wimbledon, is this part of necessaries or not?

19 Commencement of duty The duty to support arises when the child is born, rather than from date of receipt of a demand letter, Guilford County, 149 N.C. App. 663, or when a support order is entered, Freeman, 103 N.C. App. 801.

20 Termination of duty - Emancipation
Emancipation may be complete or partial

21 Termination of duty - Emancipation
Partial emancipation usually means nothing more than the parent’s relinquishment of the right to the child’s earnings for a certain period or under certain circumstances. The duty of support and the right of control are unaffected. Burbage, 263 N.C. 317

22 Termination of duty - Emancipation
Complete emancipation may occur by act of the parent when he surrenders all right to the child’s earnings and services, as well as the right to control and custody of the child’s person. By corollary, the parent is relieved of the duty of support unless the child is too young or weak to support itself. Burbage, 263 N.C. 317

23 Termination of duty - Emancipation
Complete emancipation occurs by operation of law upon the child’s marriage. Burbage, 263 N.C. 317

24 Termination of duty - Emancipation
Complete emancipation occurs by operation of law when the parent abandons or fails to support the child, only as to the parent’s rights; the parent is not freed of his parental obligations. Burbage, 263 N.C. 317 (1965).

25 Termination of duty - Emancipation
Emancipation is not presumed; it must be proven by the one asserting it. A formal contract is unnecessary; it may be expressed in writing, orally or implied from the parent’s conduct and surrounding circumstances Continued filial piety does not prove non-emancipation. Burbage, 263 N.C. 317

26 Termination of duty - Emancipation
Age of majority within power of the legislature to set G.S (c): Age 18, but in court’s discretion may extend to age 20 or if the child graduates or ceases to attend primary or secondary school on a regular basis. Constitutes complete emancipation by operation of law. Burbage. (COA cases are indulgent towards children struggling in school due to handicaps or poverty in the home.)

27 Termination of duty - emancipation
A payor may unilaterally terminate support payments only when the child either graduates from high school or attains the age of 20 years. To terminate on the ground that the child is no longer attending school or is failing to make satisfactory progress towards graduation, a payor has an affirmative duty to seek a court order. Leak, 129 N.C. App. 42

28 Termination of duty - Emancipation
1979 statutory amendment to G.S removed both the statutory and the common law duties of parents to support their disabled adult children. Yates, 93 N.C. App. 787, affirmed 325 N.C Wells, 227 N.C. 614, had found the existence of such a duty under the common law.

29 Termination of Duty The duty to pay child support is personal, and terminates at the parent’s death. Denial of Refund, 303 N.C. 102

30 Extension of Duty A parent can bind himself by contract to support a child past majority, and such a contract is enforceable as any other contract. Church, 261 N.C. 764

31 Extension of Duty A consent order that child support payments continue past the age of majority is enforceable by contempt proceedings. White, 289 N.C. 592

32 Extension of Duty Where a separation agreement, supported by consideration, required a parent to pay child support until the death of the child or remarriage of the mother, the parent’s contention that the marriage of the child was legally equivalent to its death could not be sustained. Church, 261 N.C Same result where contract said pay to age 18. Mullen, 277 N.C. 623.

33 Extension of Duty After death of parent
A contract to support surviving the parent’s death to become a charge against his estate must be clearly shown. Denial of Refund, 303 N.C. 102

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