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Obligation to Pay Child Support

Ashabranner v. Wilkins (Ind. Ct. App. June 15, 2012)

In this case, the Court of Appeals addressed a situation in which a nineteen-year-old child lived with neither parent, received Section 8 housing assistance, worked, and was in the process of beginning college. The trial court found that the child was not emancipated, ordered the father to continue paying child support, did not order the mother to pay child support, and did not consider the child’s income when calculating the amount of child support the father should pay. The Court of Appeals affirmed all aspects of the trial court’s order except the part that found the mother had no obligation to pay child support. The Court of Appeals’ opinion has three important holdings.

First, the Court first found that the child was not emancipated because the child had not initiated the action that left her outside her parents’ control. As the Court recognized, requiring a child to initiate the action that leads to the child being outside his or her parents’ control prevents parents from being able to “divorce their children and avoid paying child support simply by sending their children to live with a third party or, worse yet, just throwing the child out of the house.” Slip Op. p. 7 (quoting Dunson v. Dunson, 769 N.E.2d 1120 (Ind. 2002)). This law is not new, but this aspect of the case serves as an important reminder for practitioners dealing with emancipation arguments to carefully investigate the circumstances that led to a child living outside both parents’ homes.

Second, the Court found that the mother, as well as the father, should be required to pay child support. As the Court recognized, this case presents an uncommon situation in which a child who is entitled to support lives with neither parent. As the Court explained, when a child is living with a parent, that parent contributes to the child’s support by providing shelter, food, clothing, and other necessities. The non-custodial parent contributes by paying child support. In this case, the child’s mother moved out of the apartment where the child continued to live. The Court recognized the injustice of requiring the father to continue to pay child support and not requiring the mother to support the child. This aspect of the Court’s holding appears to be the first time an appellate court has addressed this situation and should be studied by any practitioner dealing with the uncommon situation in which a child who qualifies for support lives with neither parent.

Third, the Court of Appeals addressed whether the trial court should consider the child’s income when determining the parents’ support obligation. The Court held the child’s income should not be considered because “[a] child who is not yet emancipated is not responsible for providing for him or herself.” Slip Op. p. 10. The Court pointed out that it was addressing only basic child support and not a petition for post-secondary education expenses. In the post-secondary education context, a court will consider a child’s income.

In sum, this case should be noted by family law practitioners as the first to address the uncommon situation in which a child who qualifies for support resides with neither parent. This case also provides a succinct explanation of legal principles regarding emancipation and the effect of a child’s own income on a support determination.

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