For most family law practitioners, the issues of emancipation and contemporaneous termination of child support are addressed routinely, if not in every family law case involving children. While the most common of emancipation events (de facto emancipation) are standard fare in family law, for practitioners who seldom address emancipation issues, some more seldom seen emancipating events should be identified.
It is well settled in Illinois "that Emancipation works a severance of the filial relation as completely as if the child were of age."1 Whether or not emancipation has occurred is a question of fact, but what constitutes emancipation is a question of law.2 As a general matter, emancipation occurs upon one of three events. The first of these events is upon the child reaching the age of majority, which is the age of 18. While this is an emancipating event, child support must continue until the 18-year-old graduates from high school, but it need not continue past the nineteenth birthday.3 The second of the common emancipation events is the marriage of a child. The third event is when and if the child enters military service.4 These three emancipating events, which are routinely encountered by most family law practitioners, are known in Illinois case-law as de facto emancipation events.5
Alternative emancipation events, other than the de facto events, may pose more problems for family law practitioners and for the courts (as the finders of fact). One such emancipation event, and subject to media coverage from time to time, is when a minor petitions for his or her own emancipation. Such a petition may be brought by authority of the Emancipation of Minors Act (hereinafter the EMA).6 The child may bring such a petition prior to the occurrence of any of the de facto events, but no sooner than the child’s sixteenth birthday.7 As with other emancipating events, the courts may terminate a prior emancipation order under the EMA.8 Though this article will not address specific facts necessary to sustain a petition for emancipation, the family law practitioner should be aware that this is an event having the potential to terminate an obligation to pay child support.
While not spelled out in the Illinois Marriage and Dissolution of Marriage Act, yet another emancipating event warrants attention: a court order of emancipation after a finding that a minor has a substance abuse issue to the extent that it can be identified and found to be an addiction. This emancipating event is explicitly mentioned and noted within the Illinois Juvenile Court Act.9 The Juvenile Court Act permits the courts to find a minor to be partially or completely emancipated pursuant to the EMA.10 While section 4 of the Juvenile Court Act addresses sensitive issues involving children and addiction, it is nonetheless a means to help a parent reduce or terminate an obligation to pay child support to an obligee who is not, in fact, caring for an addicted child.
This article cannot cover all possibilities and new arguments for or against a finding of emancipation, but to give the issue proper attention, it must touch on the event when a child severs himself from his or her parents. This is identified in case-law as "self-emancipation."11 Self emancipation has been defined as when "a child who is able to support herself voluntarily abandons her parents’ home."12 While case law identifies this as an emancipating event, facts and circumstances of any given case involving support would likely be argued for and against "self emancipation." A party obligated to pay child support might support a court finding of a child’s self emancipation in an effort to terminate support when that child is financially "on her own."
However, an issue to ponder is whether or not child support payments must continue to a former spouse when the non-residential parent no longer has any contact with a child and the child is not financially independent. Such cases usually involve the estrangement of the relationship between children and their non-custodial parents. Estranged child cases are not uncommon, and most family law practitioners have experienced them. Typically and unfortunately, these cases occur in three instances: firstly, when a residential/custodial parent either does not take affirmative steps to foster a loving and close relationship between a minor child and the non-residential parent; secondly, when the custodial parent so sours a child’s mind as to lead to this unfortunate result; or thirdly, when the non-residential parent has done something that results in the estrangement. Cases such as In re the Marriage of Walters13 and In re Marriage of Donahoe14 do not address self emancipation in estrangement situations, however they support an argument for treating estrangement between a child and a non-custodial parent as the legal equivalent of self emancipation.
While estranged child cases seldom involve minors who are financially self supporting (and sometimes involve children who are toddlers), treating estrangement as an emancipating event may spur the residential parent to take on the affirmative role (burden, if you will) to encourage, foster, if not force a child, into a relationship with the non-residential parent. The residential parent is the only person who could effectively undertake the role of encouraging a rapprochement in the relationship between child and non-custodial parent. The absence of a Court’s finding of self emancipation in such circumstances would only encourage a non-residential parent to do nothing, or worse, take a course of action to widen the rift between the child and the non-residential parent. Terminating support, or the threat to do so, usually causes parents to act in a way that otherwise one would think impossible.
When a residential parent is under constructive notice that the termination of support could occur upon a finding of self emancipation, that parent receiving support is more likely to take action to prevent such a finding. That result would not be a bad thing. While not directly on point, published cases clearly support an argument for termination of child support on the grounds that estrangement is the legal equivalent of self emancipation, and should that proposition become widely accepted, it may actually repair and improve the relationship between non-custodial parents and estranged children.n
1 Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106, 109, 128 N.E. 289, 290 (1920).
3 See generally, 750 ILCS 5/505(a).
4 Iroquois at 290 (the Court noting emancipation at enlistment, but inferring that should enlistment terminate and the child remain under the age of 18, emancipation can be un-done. The Court stating, "When a minor enlists in the military service of this country, he ceases to be a part of his father’s family, and puts himself under the control of the government, and is consequently emancipated so long as this service continues." Emphasis added.
5 Proctor Hospital v. Taylor, 279 Ill.App.3d 624, 665 N.E.2d 872, 876, 216 Ill.Dec. 614 (3rd Dist. 1996).
6 Emancipation of Minors Act 750 ILCS 30/1 et seq. (only providing the opportunity for mature minors over the age of 16).
8 Section 6 of the EMA.
9 Illinois Juvenile Court Act of 1987, 705 ILCS 405/4-21(1).
10 705 ILCS 405/4-21(1)(e).
11 Proctor, 665 N.E.2d at 876.
12 Id, see also, In re Marriage of Walters, 238 Ill.App.3d 1086, 604 N.E.2d 432 (2nd Dist. 1992).
13 238 Ill.App.3d 1086, 604 N.E.2d 432 (2nd Dist. 1992) (Section 513 of the Illinois Marriage and Dissolution of Marriage Act provides for awards of educational expenses and maintenance to a child who has reached the age of majority, but does not specifically allow awards upon the occurrence of other emancipating events (e.g., self emancipation).
14 114 Ill.App.3d 470, 448 N.E.2d 1030 (2nd Dist. 1983) (the Court finding that "sound public policy would require extraordinary circumstances" to terminate child support prior to the age of majority, and a daughter’s decision to quit school against her father’s wishes would not entitle father to stop paying support).
Paul D. Nordini is the principal of the Law Offices of Paul D. Nordini, P.C., located in Naperville, Illinois. Mr. Nordini is a graduate of DePaul University, Chicago School of Law, and his practice is limited to representing clientele exclusively in family law matters.