by John Eory Esq.

In a recently published opinion, a New Jersey trial court issued two rulings of significance to divorced parents of college students. The issues in question have vexed family law attorneys for some time since cogent arguments existed on both sides.

The first issue is whether a court order that requires a college student to provide proof of attendance, credits, and grades to his or her divorced parents as a condition for payment of college expenses violates the student’s right to privacy under the Family Educational Rights and Privacy Act (FERPA).

The second and collateral issue dealt with the question of when a non-custodial parent is paying child support and/or college expenses, is the responsibility to provide that parent with the above information that of the student, the custodial parent, or both?

In the case of VB v. VB (names of parties redacted by author) the court was faced with these issues based on an assertion by the parties’ daughter that she had FERPA privacy rights relative to her college records. At the same time, her custodial parent contended that it was only her daughter, not herself, who could be ordered to obtain the documentation and provide it to the non-custodial parent. This combination of legal claims, if successful, would leave the non-custodial parent “in the dark” as to such matters while still paying child support and college expenses.

In VB, the court examined New Jersey’s legal definition of emancipation which includes an analysis of whether or not a child has “moved beyond the sphere of influence” of his or her parents. The court reasoned that if a child’s custodial parent has no control of the child and cannot obtain simple verifying information regarding college attendance and performance, the child is “beyond the sphere of control” thus leading to the legal conclusion that the child is no longer unemancipated for purposes of child support and payment of college expenses.

As for the student’s position that she had FERPA privacy rights, the court disagreed, stating that she was not entitled to use FERPA as a shield to block her father’s right to verify her collegiate status while simultaneously asserting that she was entitled to support and payment of her college expenses.

The court also defined the extent of information that a college student is obligated to provide and consisting of proof of enrollment, credits, and academic performance while indicating that there may be other information in a student’s file that has limited or no relevance. For example, a college student who attends counseling on campus may elect to keep such information confidential. Based on the above, the court concluded that as long as the college student remains unemancipated, her custodial parent is obligated to provide the non custodial parent with documented verification of courses taken, the number of credits per course, and copies of her report cards at the conclusion of each marking period. Should the student or the custodial parent fail to comply, the court indicated that it would entertain an application to declare the student emancipated. It strongly appears that under the court’s analysis, such an application would be granted.

By way of caveat, the VB opinion was issued by a trial court, as opposed to the Appellate Division or the New Jersey Supreme Court. Thus, while not mandatory for other courts to follow; since the opinion was approved for publication (as opposed to numerous other opinions that remain unpublished due to their lack of instructional or probative value), VB v. VB provides worthwhile findings of fact and conclusions of law for courts and family law attorneys to apply as appropriate in the circumstances of each case. As such, it represents an overdue and clarifying step in the right direction.

John Eory is a Shareholder in Stark & Stark’s Divorce Group and can be reached at jeory@stark-stark.com

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