Family Court Judges Should Not Have Jurisdiction to Order Parents to Pay College Expenses

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BWS: Opinion: Family Court Judges Should Not Have Jurisdiction to Order Parents to Pay College Expenses.

By Luke Burke

According to the Census Bureau, around 36 percent of U.S. adults have bachelors’ degrees. The past few decades have seen a push for four-year education to keep up with the evolving industry and jobs in America. Even over the past few years there have been debates on whether or not the United States should pursue free education at the college level. This has raised an ethical dispute: is the United States youth entitled to higher education?

Taking a deeper dive into this issue, many families have the financial ability to pay for their children to go to college. But what about emancipated youth? In South Carolina, emancipation usually occurs when a child turns 19 or graduates from high school and generally indicates that a child becomes free from parental control and the parents are no longer legally responsible for the child. But, are parents responsible to pay for that child’s college degree?

In South Carolina, family court judges may order parents to pay college expenses for their emancipated children. Based on the changing economic landscape and the drastic change in the number of individuals pursuing college degrees, I believe that the law no longer supports family court judges having jurisdiction to order parents to pay college expenses.

The current state of the law is based on the Risinger case—a 1979 case where the South Carolina Supreme Court ruled that the family court can order parents to pay college expenses under the theory that the family court is allowed to make orders running past a child’s majority “where there are physical or mental disabilities of the child or other exceptional circumstances warrant it,” which is quoted from the family court jurisdictional statute.

Risinger was overturned in Webb v. Sowell in 2010 but was revived by McLeod v. Starnes, a 2012 case.

McLeod v. Starnes was a 3-2 split decision in the Supreme Court. Then Justice, now Chief-Justice, Beatty wrote the dissent in the case in which he argued that Risinger was wrongly decided and the family court does not have jurisdiction to order parents to pay college expenses.

Even if Risinger was correctly decided in 1979 when fewer people went to college, going to college is no longer an “exceptional circumstance,” so Risinger should be and probably will be overturned. Almost half of all American adults hold at least an associates’ degree. This year, an estimated 20.4 million students enrolled in college compared to an estimated 11.6 million enrolled in 1979.

Additionally, two of the justices who decided the McLeod case (Chief Justice Toal and Justice Pleicones) have since retired so it is entirely possible that the state of the law will change if the new justices (Justice Few and Justice James) agree with Chief Justice Beatty.

As an associate at Bannister, Wyatt & Stalvey, Luke Burke’s main area of practice is in Civil Litigation, with a primary focus on Family Law, Real Estate Litigation and Business Litigation.

 Mr. Burke received his bachelor’s degree from the University of Notre Dame in 2002, and held a position as a software engineer and developer for several years before entering law school. In 2011, Mr. Burke graduated with honors from the University of South Carolina School of Law and became a member of the South Carolina Bar. During his time at USC, he was a distinguished member of the South Carolina Law Review, Order of the Coif, and Order of Wig and Robe.

 A Chicago native, Mr. Burke relocated to Greenville in 2006 after observing the exciting revitalization occurring in the upstate. He and his wife, Megan, currently reside in Taylors and enjoy taking advantage of the many outdoor festivals and fine cuisine Greenville has to offer.

 Prior to joining Bannister, Wyatt & Stalvey, Mr. Burke served as an associate attorney with Moon Law where his practice focused on litigation. He also holds past experience with the University of South Carolina Intellectual Property Office, where he drafted contracts, licenses, and compliance reports, and assisted in obtaining patents for USC inventions.

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