Need Clarification

[POC]

Not that it is big news, but I am confused. I had a discussion in the General Issues forum with a mediator. He said, "Coloraado does not mandate parental financial support for a college education (nor do most states if any) unless there had been a prior agreement betweenthe parents to do so."

I read through the Colorado statutes, and to me, the law appears to read differently. The issue at hand is whether the law provides rights to children of divorce that children from intact families do not receive.

Q. With regards to college expenses, do children of divorced parents receive unequal protections from the law than do children of intact families, and if so is this a violation of the constitutional rights of children from intact families in Colorado?

Applicable statutes below:

(1.5) (a)

III) If the child is still in high school or an equivalent program, support continues until the end of the month following graduation, unless there is an order for postsecondary education, in which case support continues through postsecondary education as provided in subparagraph (I) of paragraph (b) of this subsection (1.5). A child who ceases to attend high school prior to graduation and later reenrolls is entitled to support upon reenrollment and until the end of the month following graduation, but not beyond age twenty-one.

(b) (I) If the court finds that it is appropriate for the parents to contribute to the costs of a program of postsecondary education, then the court shall terminate child support and enter an order requiring both parents to contribute a sum determined to be reasonable for the education expenses of the child, taking into account the resources of each parent and the child. In determining the amount of each parent's contribution to the costs of a program of postsecondary education for a child, the court shall be limited to an amount not to exceed the amount listed under the schedule of basic child support obligations in paragraph (b) of subsection (10) of this section for the number of children receiving postsecondary education. The amount of contribution which each parent is ordered to pay pursuant to this paragraph (b) shall be subtracted from the amount of each parent's gross income, respectively, prior to calculating the basic child support obligation for any remaining children pursuant to subsection (10) of this section. In no case shall the court issue orders providing for both child support and postsecondary education to be paid for the same time period for the same child regardless of the age of the child. Either parent or the child may move for such an order at any time before the child attains the age of twenty-one years. Either a child seeking an order for postsecondary education expenses or on whose behalf postsecondary education expenses are sought, or the parent from whom the payment of postsecondary education expenses are sought, may request that the court order the child and such parent to seek mediation prior to a hearing on the issue of postsecondary education expenses. Mediation services shall be provided in accordance with section 13-22-305, C.R.S. The court may order the parties to seek mediation if the court finds that mediation is appropriate. Postsecondary education includes college and vocational education programs. If such an order is entered, the parents shall contribute to the total sum determined by the court in proportion to their adjusted gross incomes as defined in subparagraph (II) of paragraph (a) of subsection (10) of this section. The order for postsecondary education support may not extend beyond the earlier of the child's twenty-first birthday or the completion of an undergraduate degree. The court may order the support paid directly to the educational institution, to the child, or in such other fashion as is appropriate to support the education of the child. If the child resides in the home of one parent while attending school or during periods of time in excess of thirty days when school is not in session, the court may order payments from one parent to the other for room and board until the child attains the age of nineteen. A child shall not be considered emancipated solely by reason of living away from home while in postsecondary education.

[socrateaser]

>Not that it is big news, but I am confused. I had a
>discussion in the General Issues forum with a mediator. He
>said, "Coloraado does not mandate parental financial support
>for a college education (nor do most states if any) unless
>there had been a prior agreement betweenthe parents to do
>so."

Colorado leaves the issue of post-secondary educational support for an adult child to the broad discretion of the court. Meaning the court isn't required to order support, but the court may order it, and as a practical matter, the court almost always does order such support.

>Q. With regards to college expenses, do children of divorced
>parents receive unequal protections from the law than do
>children of intact families, and if so is this a violation of
>the constitutional rights of children from intact families in
>Colorado?

You seem to have some legal training. How about you write your argument to me, first, and then I'll provide an opposing argument?

[POC]

Wow, thanks soc. The only legal training I have received is from the School of Hard Knocks. I'll take you up on your offer anyway.

I'm not from Colorado, but the mediator apparently is. Since it wasn't reasonable to expect him to know the laws in my state, Florida, the discussion gravitated to his state's laws. So, I'll take my college experience in FL and place it in the context of Colorado's laws.

My parents were married until my father's death 2 years ago. I am the 5th of 6 kids, my father was a teacher, and my mother worked a variety of jobs for additional familial income. Needless to say, growing up in an affluent community had its challenges. I have held some type of employment since I was 14. When I got a job, I was told that I would be responsible to buy my own clothes, lunch at school, car, auto insurance, gas, and any other personal expenses. My parents provided meals at home, a roof over my head, utilties, and strong sense of values that still rules my thoughts today. But, I never thought I was deprived.

In order to go to college, I had to sell my car (Fiat X 1/9), which was a piece of **** anyway. I used that money to pay for my first semester's tuition, books, and dorm that semester. On top of that, I had saved about $900 before school started. My mom was a travel agent at the time, and was able to get a free ticket to Tallahassee for me. From the airport, I paid for a cab to my sister's apartment, where I stayed my first night in town. I had two suitcases - nothing else, but my $900 and eyes as big as saucers. Oh, and I did have a job before I arrived in town. I transeferred with Pizza Hut. At the time, I earned $5 per hour, which was unheard of. Minimum wage was $3.15 per hour. At the end of the day, the managers saw the value of having someone who could pump out picture perfect pizza faster than their ovens could keep up with, and run better numbers than they could. Never once did I call in sick, and I stayed until the job was done. To get to and from work, I walked, just like I did everywhere else, including to get groceries. Eventually, I got a better paying job waiting tables, and had more than enough money to survive. I graduated in 4 1/2 years.

Now, if I had grown up in Colorado, I guess life would not have been much different, since I came from an intact family. But, if I grew up in Colorado, and my mom decided that she wanted my college education to be paid for, then all she would have had to have done is divorce my dad, and then they would have been compelled to pay for it. At least that is the way that I understand the statute that I supplied to you.

Q.

1) As a child from an intact family why does the law afford me less parental support while attending college than my peers from divorced families receive?

2) Isn't this treating two classes of students unequally?

3) Furthermore, isn't it an inducement for parents to divorce if they are in disagreement about paying for their child's college education?

4) Does this qualify as unequal treatment under the Equal Protection Clause within the U.S. Constitution?

[socrateaser]

>Q.
>
>1) As a child from an intact family why does the law afford me
>less parental support while attending college than my peers
>from divorced families receive?

This is an interesting position, because you have reversed the usual question. The answer, frankly, to your direct question is, that no child of an intact marriage, to my knowlege, has ever come to court and requested equal protection under the law, in order to force his/her parents to pay for his college education. If one did, then I suspect that the court hearing the case might have some difficulty rejecting the claim.

The winning argument for the child of the divorced parent in sustaining such laws, has, thus far, been that children of divorced parents are presumably less likely to get college support from their parents because of the estrangement resulting from the divorce. The Oregon Supreme court mentioned in passing that courts do not ordinarily involve themselves in the internal financial affairs of intact marriages -- this being a veiled acknowledgement that married persons may have a fundamental substantive constitutional right to control their financial affairs absent a showing of a compelling state interest to the contrary, whereas divorced parents no longer have such a right.

The only court that has sided with the divorced payor parent (Pennsylvania Supreme Court) took the position to which you allude, i.e., that the distinctly different treatment of children of divorced parents vs. children of married parents was not reasonably related to a legitmate state interest and struck down the statute. However, there was a pretty strong dissent in the case, suggesting that the ruling was incorrect, because, once again, divorced parents have lost their fundamental right to control their personal finances as to the education of their adult children.

For me, both the entire equal protection argument, and the substantive due process arguement, are entirely irrelevant, and both escape what I believe is the more appropriate argument, i.e., violation of the public takings clause.

Why should an adult person, family or not, be permitted by the state to "take" property of either of his/her parents, without first showing that the person has suffered some palpable harm, for which the person is entitled to compensation? Point being, that ordinarily, no private person can walk into court and say, "Your honor, my neighbor has more money than me, please order him to give me some!" Or, "Your honor, I can't pay my rent, so please order my neighbor to pay it for me, because he can afford it easily!"

Such actions are "private takings," long held to be absolutely unconstitutional under the takings clause of the 5th Amendment to the Constitution of the U.S.

Getting even closer to the mark, if we include family and real property components into the scenario, and say, "Your honor, my father won't grant me a tenacy in common in his home, so that I can borrow against it to pay for my college education -- please order him to do this, because I can't pay for it myself," then it becomes completely obvious that the statutes permitting "adult child support" are Alice in Wonderland nonsense, that would only be appropriate in a strictly totalitarian dictatorship, where the government simply does what it wants (e.g., "From each according to his ability, to each according to his need." -- Karl Marx, Critique of the Gothe Programme).

However, for some reason, that is completely beyond my comprehension, no attorney anywhere has ever had the !@#$% to walk into a courtroom and tell it like it is -- college age support to an adult child is government sponsored theft -- period!
>
>2) Isn't this treating two classes of students unequally?

Equal Protection requires that laws impairing the rights of suspect classes be given strict scrutiny and presumed unconstitional, however, divorced parents are not considered a suspect class (i.e., race, religion, ethnicity, national origin -- traditionally persecuted minorities), and therefore the state need only show that the statute has reasonable relationship to a rational state interest in order for the statute to withstand constitutional challenge.

Divorced parents cannot show that they are traditionally persecuted, so equal protection doesn't apply as long as all divorced parents are treated equally, and all married parents are also treated equally, each as a separate class -- which, they are, for the purposes of college age child support.

>
>3) Furthermore, isn't it an inducement for parents to divorce
>if they are in disagreement about paying for their child's
>college education?

So what? The state can encourage divorce if it wishes, however, individual married persons could challege such a hypothetical law on grounds that encouraging divorce violates fundamental rights, and the state has no compelling interest to do so. Therefore, under your scenario, the law would fail and you would be denied support, whereas the divorced parent has lost the fundamental rights protection, by virtue of the divorce, and the law thereby succeeds.

>4) Does this qualify as unequal treatment under the Equal
>Protection Clause within the U.S. Constitution?

Nope...see above.

It's still a private taking, however. That's the key to destroying this particular statute. Trouble is, that very very very very few appellate judges would want to tackle this issue with any honest legal analysis. If they did, then they would have addressed the issue on their own motion long ago and tossed the entire notion onto the ash heap of history -- where it belongs -- in my humble opinion.

The bottom line is that the law as currently devised, allows the state to have its cake and eat it too, because it tells the child, "Today you are an adult, and entitled to and obligated for, all of the rights and obligations of any other adult," but, it simultaneously tells the parent, "Your child is still entitled to your support, even though he/she can tell you to stick it where the sun don't shine, and there's nothing you can do about it!"

This, needless to say, is a hot button for me -- although I have never been subjected to the law, personally. I just think that the intellectual dishonesty that is required to maintain this line of legislation as not only reasonable, but laudable, makes the legal profession seem rather dim, and definitely shows a strong preference for the general destruction of private ownership of property.

You know -- full-blown communism -- nothing less.

[POC]

Wow again soc,

1) I reversed things. That is typical of me. But, in all honesty when it comes to mind I am not even thinking of it that way. I'm just unusual, but it's ok, I know it. Nevertheless, I was thinking of it as one student opposed to the other. Apparently, I was right in my thoughts.

2) Again, I wasn't dealing with the parental aspects of it. I learned a long time ago that the courts could give a rats a** about that, espeically those of fathers. So, if I had grown up in Colorado I would have a case?

3) Silly me!

4) The public seizure for public taking is well understood by me, and I agree. I am apt to get so wordy that I didn't want to bring that up too.

5) I guess most importantly of all, my interpretation of the CO law was correct in that it requires divorced parents to provide a college education to their children. Do you concur? After all, that is what prompted my post to you.


As a side note, FL has no such requirements. Also, I'll try to keep you abreast of the major changes that are due to occur.

[socrateaser]

>2) Again, I wasn't dealing with the parental aspects of it. I
>learned a long time ago that the courts could give a rats a**
>about that, espeically those of fathers. So, if I had grown up
>in Colorado I would have a case?

You might, but probably not, because your parents were married and therefore have substantive due process rights requiring a compelling state interest to overcome. The question simply has never been raised, so it's unknown how the Colorado Supreme Court would rule.

>5) I guess most importantly of all, my interpretation of the
>CO law was correct in that it requires divorced parents to
>provide a college education to their children. Do you concur?

No, the law gives the court broad discretion to order college support, but it does not absolutely require that it be ordered. However, in practice, the court almost always orders college age support. Judges are just certain that a college education is the key to success.

Bill Gates, the wealthiest man in the world, does not have a Bachelors Diploma. He dropped out of Harvard.