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Separate Households: Whose Insurance Covers the Kids’ Accidents?

Michael and Maureen divorced after 18 years of marriage and agreed to joint custody of their three children. Their 11 year-old son Mikey is riding his bike one afternoon with some friends and not paying full attention to the road in front of him. A five year-old child chasing a ball runs into the road and Mikey strikes her with his bike, causing her to fall and break her arm. The child’s furious parents sue both Michael and Maureen for compensation for her injuries and trauma.

Not long after, their 16 year-old son Mark gets his drivers license. One evening while driving home, he swerves to avoid a deer in the road, loses control, and plows into two parked cars. Both cars are relatively new; the repair bills come to thousands of dollars.

Because Michael and Maureen now have separate households, they each have their own auto and homeowner’s insurance policies. Are both parents responsible for the children’s actions? Is only the parent who had custody at the time of the accident responsible? And whose insurance pays for the damages? Will either policy pay? With the increasing prevalence of two-household families and blended families, the question of which parent (and, therefore, which insurance policy) is responsible for a child’s actions has become more common. The answer is not always clear.

A standard homeowner’s policy covers the people named on it (the named insureds); household residents who are either relatives of the named insureds or under age 21 and in the care of a named insured or relative; and full-time college students who are either relatives of the named insureds and under age 24 or others in the care of a household resident and under age 21. A standard auto policy covers the named insureds and “family members” (residents of the household related to the named insureds by blood, marriage, or adoption, including ward or foster children.) Michael and Maureen have joint custody of their children. In which parent’s household are the children residents?

State laws and courts have answered this question in a variety of ways. For example, states such as New York have established “dual residency”; that is, a person can be a legal resident of multiple households at the same time. However, other states such as Montana have laws prohibiting dual residency. Some courts start with the custody awarded in the divorce decree but also consider how the parents are actually handling custody. A New Jersey court found that a child had dual residency, despite the mother having legal custody, because both parents had actual custody at different times. The judge ruled that both parents’ homeowner’s policies applied to the child.

Other states have ruled that no one factor determines residency; a court must look at multiple factors. A Georgia court devised an approach that measures custody time and focuses on whether there is in fact more than one household. New Jersey courts look at both measurable factors and qualitative factors, such as whether people in the household function together as family members.

If Michael and Maureen live in a dual residency state, both their homeowner’s and auto policies may cover the accidents their children have. Policy terms explain how they share loss payments for these incidents. In other states, the solution may be more complicated. A court may weigh several factors and assign residency to only one of the households, requiring one parent’s insurance to pay for the loss. Since the outcome in these situations is uncertain, the best thing for divorced parents to do is to make sure they have plenty of insurance provided by financially strong companies.