Is my ex husband obligated to pay child support now that our daughter 18 but still a student?
Full Question:
Answer:
The applicable North Carolina statutes are as follows:
§ 50-13.4. Action for support of minor child.
(a) Any parent, or any person, agency, organization or institution
having custody of a minor child, or bringing an action or proceeding for
the custody of such child, or a minor child by his guardian may institute
an action for the support of such child as hereinafter provided.
(b) In the absence of pleading and proof that the circumstances
otherwise warrant, the father and mother shall be primarily liable for
the support of a minor child. In the absence of pleading and proof that
the circumstances otherwise warrant, parents of a minor, unemancipated
child who is the custodial or noncustodial parent of a child shall share
this primary liability for their grandchild's support with the minor
parent, the court determining the proper share, until the minor parent
reaches the age of 18 or becomes emancipated. If both the parents of the
child requiring support were unemancipated minors at the time of the
child's conception, the parents of both minor parents share primary
liability for their grandchild's support until both minor parents reach
the age of 18 or become emancipated. If only one parent of the child
requiring support was an unemancipated minor at the time of the child's
conception, the parents of both parents are liable for any arrearages in
child support owed by the adult or emancipated parent until the other
parent reaches the age of 18 or becomes emancipated. In the absence of
pleading and proof that the circumstances otherwise warrant, any other
person, agency, organization or institution standing in loco parentis
shall be secondarily liable for such support. Such other circumstances
may include, but shall not be limited to, the relative ability of all the
above-mentioned parties to provide support or the inability of one or
more of them to provide support, and the needs and estate of the child.
The judge may enter an order requiring any one or more of the
above-mentioned parties to provide for the support of the child as may be
appropriate in the particular case, and if appropriate the court may
authorize the application of any separate estate of the child to his
support. However, the judge may not order support to be paid by a person
who is not the child's parent or an agency, organization or institution
standing in loco parentis absent evidence and a finding that such
person, agency, organization or institution has voluntarily assumed the
obligation of support in writing. The preceding sentence shall not be
construed to prevent any court from ordering the support of a child by an
agency of the State or county which agency may be responsible under law
for such support.The judge may order responsible parents in a IV-D establishment case to
perform a job search, if the responsible parent is not incapacitated. This
includes IV-D cases in which the responsible parent is a noncustodial
mother or a noncustodial father whose affidavit of parentage has been
filed with the court or when paternity is not at issue for the child. The
court may further order the responsible parent to participate in work
activities, as defined in 42 U.S.C. § 607, as the court deems
appropriate.
(c) Payments ordered for the support of a minor child shall be in such
amount as to meet the reasonable needs of the child for health,
education, and maintenance, having due regard to the estates, earnings,
conditions, accustomed standard of living of the child and the parties,
the child care and homemaker contributions of each party, and other facts
of the particular case. Payments ordered for the support of a minor child
shall be on a monthly basis, due and payable on the first day of each
month. The requirement that orders be established on a monthly basis does
not affect the availability of garnishment of disposable earnings based
on an obligor's pay period.The court shall determine the amount of child support payments by
applying the presumptive guidelines established pursuant to subsection
(c1) of this section. However, upon request of any party, the Court shall
hear evidence, and from the evidence, find the facts relating to the
reasonable needs of the child for support and the relative ability of
each parent to provide support. If, after considering the evidence, the
Court finds by the greater weight of the evidence that the application of
the guidelines would not meet or would exceed the reasonable needs of the
child considering the relative ability of each parent to provide support
or would be otherwise unjust or inappropriate the Court may vary from the
guidelines. If the court orders an amount other than the amount
determined by application of the presumptive guidelines, the court shall
make findings of fact as to the criteria that justify varying from the
guidelines and the basis for the amount ordered.Payments ordered for the support of a child shall terminate when the
child reaches the age of 18 except:
(1) If the child is otherwise emancipated, payments shall terminate at
that time;
(2) If the child is still in primary or secondary school when the child
reaches age 18, support payments shall continue until the child
graduates, otherwise ceases to attend school on a regular basis, fails to
make satisfactory academic progress towards graduation, or reaches age
20, whichever comes first, unless the court in its discretion orders that
payments cease at age 18 or prior to high school graduation.In the case of graduation, or attaining age 20, payments shall
terminate without order by the court, subject to the right of the party
receiving support to show, upon motion and with notice to the opposing
party, that the child has not graduated or attained the age of 20.If an arrearage for child support or fees due exists at the time that a
child support obligation terminates, payments shall continue in the same
total amount that was due under the terms of the previous court order or
income withholding in effect at the time of the support obligation. The
total amount of these payments is to be applied to the arrearage until
all arrearages and fees are satisfied or until further order of the
court.
(c1) Effective July 1, 1990, the Conference of Chief District Judges
shall prescribe uniform statewide presumptive guidelines for the
computation of child support obligations of each parent as provided in
Chapter 50 or elsewhere in the General Statutes and shall develop
criteria for determining when, in a particular case, application of the
guidelines would be unjust or inappropriate. Prior to May 1, 1990 these
guidelines and criteria shall be reported to the General Assembly by the
Administrative Office of the Courts by delivering copies to the President
Pro Tempore of the Senate and the Speaker of the House of
Representatives. The purpose of the guidelines and criteria shall be to
ensure that payments ordered for the support of a minor child are in such
amount as to meet the reasonable needs of the child for health,
education, and maintenance, having due regard to the estates, earnings,
conditions, accustomed standard of living of the child and the parties,
the child care and homemaker contributions of each party, and other facts
of the particular case. The guidelines shall include a procedure for
setting child support, if any, in a joint or shared custody arrangement
which shall reflect the other statutory requirements herein.Periodically, but at least once every four years, the Conference of
Chief District Judges shall review the guidelines to determine whether
their application results in appropriate child support award amounts. The
Conference may modify the guidelines accordingly. The Conference shall
give the Department of Health and Human Services, the Administrative
Office of the Courts, and the general public an opportunity to provide
the Conference with information relevant to the development and review of
the guidelines. Any modifications of the guidelines or criteria shall be
reported to the General Assembly by the Administrative Office of the
Courts before they become effective by delivering copies to the President
Pro Tempore of the Senate and the Speaker of the House of
Representatives. The guidelines, when adopted or modified, shall be
provided to the Department of Health and Human Services and the
Administrative Office of the Courts, which shall disseminate them to the
public through local IV-D offices, clerks of court, and the media.Until July 1, 1990, the advisory guidelines adopted by the Conference
of Chief District Judges pursuant to this subsection as formerly written
shall operate as presumptive guidelines and the factors adopted by the
Conference of Chief District Judges pursuant to this subsection as
formerly written shall constitute criteria for varying from the amount of
support determined by the guidelines.(d) In non-IV-D cases, payments for the support of a minor child shall
be ordered to be paid to the person having custody of the child or any
other proper person, agency, organization or institution, or to the State
Child Support Collection and Disbursement Unit, for the benefit of the
child. In IV-D cases, payments for the support of a minor child shall be
ordered to be paid to the State Child Support Collection and Disbursement
Unit for the benefit of the child.(d1) For child support orders initially entered on or after January 1,
1994, the immediate income withholding provisions of G.S. 110-136.5(c1)
shall apply.(e) Payment for the support of a minor child shall be paid by lump sum
payment, periodic payments, or by transfer of title or possession of
personal property of any interest therein, or a security interest in or
possession of real property, as the court may order. The court may order
the transfer of title to real property solely owned by the obligor in
payment of arrearages of child support so long as the net value of the
interest in the property being transferred does not exceed the amount of
the arrearage being satisfied. In every case in which payment for the
support of a minor child is ordered and alimony or postseparation support
is also ordered, the order shall separately state and identify each
allowance.(e1) In IV-D cases, the order for child support shall provide that the
clerk shall transfer the case to another jurisdiction in this State if
the IV-D agency requests the transfer on the basis that the obligor, the
custodian of the child, and the child do not reside in the jurisdiction
in which the order was issued. The IV-D agency shall provide notice of
the transfer to the obligor by delivery of written notice in accordance
with the notice requirements of Chapter 1A-1, Rule 5(b) of the Rules of
Civil Procedure. The clerk shall transfer the case to the jurisdiction
requested by the IV-D agency, which shall be a jurisdiction in which the
obligor, the custodian of the child, or the child resides. Nothing in
this subsection shall be construed to prevent a party from contesting the
transfer.(f) Remedies for enforcement of support of minor children shall be
available as herein provided.(1) The court may require the person ordered to make payments for the
support of a minor child to secure the same by means of a bond, mortgage
or deed of trust, or any other means ordinarily used to secure an
obligation to pay money or transfer property, or by requiring the
execution of an assignment of wages, salary or other income due or to
become due.(2) If the court requires the transfer of real or personal property or
an interest therein as provided in subsection (e) as a part of an order
for payment of support for a minor child, or for the securing thereof,
the court may also enter an order which shall transfer title as provided
in G.S. 1A-1, Rule 70 and G.S. 1-228.(3) The remedy of arrest and bail, as provided in Article 34 of Chapter
1 of the General Statutes, shall be available in actions for
child-support payments as in other cases.(4) The remedies of attachment and garnishment, as provided in Article
35 of Chapter 1 of the General Statutes, shall be available in an action
for child-support payments as in other cases, and for such purposes the
child or person bringing an action for child support shall be deemed a
creditor of the defendant. Additionally, in accordance with the
provisions of G.S. 110-136, a continuing wage garnishment proceeding for
wages due or to become due may be instituted by motion in the original
child support proceeding or by independent action through the filing of a
petition.(5) The remedy of injunction, as provided in Article 37 of Chapter 1 of
the General Statutes and G.S. 1A-1, Rule 65, shall be available in
actions for child support as in other cases.(6) Receivers, as provided in Article 38 of Chapter 1 of the General
Statutes, may be appointed in action for child support as in other
cases.(7) A minor child or other person for whose benefit an order for the
payment of child support has been entered shall be a creditor within the
meaning of Article 3A of Chapter 39 of the General Statutes pertaining to
fraudulent conveyances.(8) Except as provided in Article 15 of Chapter 44 of the General
Statutes, a judgment for child support shall not be a lien against real
property unless the judgment expressly so provides, sets out the amount of
the lien in a sum certain, and adequately describes the real property
affected; but past due periodic payments may by motion in the cause or by
a separate action be reduced to judgment which shall be a lien as other
judgments and may include provisions for periodic payments.(9) An order for the periodic payments of child support or a child
support judgment that provides for periodic payments is enforceable by
proceedings for civil contempt, and disobedience may be punished by
proceedings for criminal contempt, as provided in Chapter 5A of the
General Statutes.Notwithstanding the provisions of G.S. 1-294, an order for the payment
of child support which has been appealed to the appellate division is
enforceable in the trial court by proceedings for civil contempt during
the pendency of the appeal. Upon motion of an aggrieved party, the court
of the appellate division in which the appeal is pending may stay any
order for civil contempt entered for child support until the appeal is
decided, if justice requires.(10) The remedies provided by Chapter 1 of the General Statutes,
Article 28, Execution; Article 29B, Execution Sales; and Article 31,
Supplemental Proceedings, shall be available for the enforcement of
judgments for child support as in other cases, but amounts so payable
shall not constitute a debt as to which property is exempt from execution
as provided in Article 16 of Chapter 1C of the General Statutes.(11) The specific enumeration of remedies in this section shall not
constitute a bar to remedies otherwise available.(g) An individual who brings an action or motion in the cause for the
support of a minor child, and the individual who defends the action,
shall provide to the clerk of the court in which the action is brought or
the order is issued, the individual's social security number. The child
support order shall contain the social security number of the parties as
evidenced in the support proceeding.(h) Child support orders initially entered or modified on and after
October 1, 1998, shall contain the name of each of the parties, the date
of birth of each party, the social security number of each party, and the
court docket number. The Administrative Office of the Courts shall
transmit to the Department of Health and Human Services, Child Support
Enforcement Program, on a timely basis, the information required to be
included on orders under this subsection.§ 50-13.7. Modification of order for child support or custody.
(a) An order of a court of this State for support of a minor child may
be modified or vacated at any time, upon motion in the cause and a
showing of changed circumstances by either party or anyone interested
subject to the limitations of G.S. 50-13.10. Subject to the provisions of
G.S. 50A-201, 50A-202, and 50A-204, an order of a court of this State for
custody of a minor child may be modified or vacated at any time, upon
motion in the cause and a showing of changed circumstances by either
party or anyone interested.(b) When an order for support of a minor child has been entered by a
court of another state, a court of this State may, upon gaining
jurisdiction, and upon a showing of changed circumstances, enter a new
order for support which modifies or supersedes such order for support,
subject to the limitations of G.S. 50-13.10. Subject to the provisions of
G.S. 50A-201, 50A-202, and 50A-204, when an order for custody of a minor
child has been entered by a court of another state, a court of this State
may, upon gaining jurisdiction, and a showing of changed circumstances,
enter a new order for custody which modifies or supersedes such order for
custody.§ 50-13.8. Custody of persons incapable of self-support upon reaching
majority.For the purposes of custody, the rights of a person who is mentally or
physically incapable of self-support upon reaching his majority shall be
the same as a minor child for so long as he remains mentally or
physically incapable of self-support.
