Grandparents can’t be tagged automatically with nondischargeable debts incurred for the support of their grandchildren, according to Bankruptcy Judge Thomas M. Lynch of Rockford, Ill.
We previously reported on Wischmeyer v. Bobinski (In re Bobinski), where District Judge Jon E. DeGuilio of Hammond, Ind., held in December that legal fees owing to a guardian ad litem for minor children are not dischargeable in the father’s bankruptcy. Courts, however, are split in deciding whether a guardian has a nondischargeable claim against a bankrupt parent.
A similar, although critically different, case confronted Judge Lynch.
In his case, grandparents sought and obtained a guardian ad litem for their grandchild. After the grandparents filed bankruptcy, the guardian contended that his $3,500 in fees was not dischargeable under Section 523(a)(5) as a domestic support obligation.
Judge Lunch’s opinion on Jan. 25 turned on Section 101(14A), which defines “domestic support obligation” to mean support recoverable by a “child of the debtor” or by “such child’s parent, legal guardian or responsible relative.”
Granting a motion to dismiss, Judge Lynch held that a grandchild does not qualify as a “child” in Section 101(14A). He found the complaint deficient because it did not allege or show facts to indicate that the grandparents were the de facto parents or responsible relatives. He gave the guardian leave to file an amended complaint.
Judge Lynch’s opinion shows the importance of reading case law before drafting a complaint so the allegations are up to snuff.