by Dillon Erickson
Q. My ex is trying to get out of paying child support by concocting a plan for our 16- year-old daughter to get married. Can he do that?
A. The short answer is yes, for now. In Idaho, a court can only make child custody and child support decisions for a minor child the minor reaches the age of majority, is emancipated by marriage or emancipated by a legal proceeding. A minor aged 16 or 17 can become emancipated by marriage if at least one parent consents to the marriage. Idaho law does not require that both parents give their consent before a minor can get married.
This very situation occurred recently in Idaho, and the court case went all the way to the Idaho Supreme Court. The Supreme Court allowed the emancipation by marriage to remain in effect because the father in that case consented to the marriage and Idaho law only requires one parent to consent to the marriage. In the case, the mother of the minor child alleged that the marriage was a sham and designed by the father for the sole purpose of preventing the court from making any further custody decisions.
The Supreme Court appeared to have some concerns with the law as written. It noted that the marriage by minors law was written over 100 years ago and has remained unchanged since then. The Supreme Court also noted that the right of parents to make decisions regarding the care, custody and control of their children is a fundamental right. Other states require the consent of both parents before a minor can get married. Another state specifically discusses whose consent is required when parents are divorced. However, the Idaho law dealing with the issue only requires one parent to consent to the marriage.
One Supreme Court Justice dissented. Justice Moeller said: “Father has openly flouted the court’s role in acting in Daughter’s best interests. Additionally, Father has not only made a mockery of our marriage laws, he has also exposed his 16-year-old Daughter to the potential life altering consequences of an ill-conceived and hasty marriage of convenience.”
It does appear, however, that the Idaho Legislature is aware of this decision and might be working to change the law. Stay tuned to the Idaho Legislature to stay informed or reach out to your state representative.
If you think your ex-spouse is trying to create a sham marriage to avoid child custody of child support obligations, take action now. File a motion for a restraining order or hire an attorney.
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