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Monday, December 15, 2014

Constructive Emancipation in New York City Child Support Law

In the state of New York, parents have a legal duty to support their children until the age of 21, unless they are sooner emancipated.

This "doctrine of constructive emancipation" is derived from the Child Support Standards Acts and corresponding case law in New York.

Some of the circumstances under which children might become emancipated prior to turning 21 might include:

  • The child gets married
  • The child joins the military
  • The child becomes economically independent
  • The child voluntarily and without cause abandons the parent's home, against parent's will, for purpose of avoiding parental control

Our Brooklyn child support attorneys understand that in cases reflecting that last circumstance, courts have consistently ruled children (who are technically also legal adults) forfeit their right to demand support in these circumstances.

While cases asserting economic independence can be fairly straightforward (it's easy enough to prove a child got married), it's a bit more difficult when the claim is abandonment. It's more of a subjective determination.

In cases where a custodial parent sets certain reasonable rules and the child leaves in order to not to have to follow those rules, courts have found this can amount to "abandonment" for these purposes. But non-residential parents can also claim abandonment if the child unreasonably refuses all visitation and contact. If the child is under 18, courts will often look closely to examine whether it is at all possible to reconcile the relationship. If it is not, only then will constructive emancipation be considered.

Recently, the New York Supreme Court, Appellate Division, First Department, weighed just one such case, reviewing dismissal of a father's petition seeking child support from the child's mother. In Matter of Jose R. v. Yvette-Ortiz M., custodial parent (father) sought to compel mother to pay support for their 18-year-old son.

However, the lower court dismissed his petition,finding he'd voluntarily and without good cause abandoned his mother. She presented evidenced, later also reviewed by appellate court, showing that for a full year, her son refused to see her or speak with her. He offered no explanation and declined to speak before the court.

During this time, mother made numerous attempts to repair and maintain a relationship with her son. She presented evidence of phone calls, letters, cards, e-mails, social media messages. In no case did he respond or give any indication of why he was silent.

Although the court would not speculate on the cause for son's silence, the judge did rule there was no indication the mother had prompted this deterioration in the relationship. As such, the appellate division affirmed the lower court.

These cases are complex, and certainly, we understand few parents take pleasure in this type of action because it often means their relationship with their children is not in a good place. They worry whether it will ever be again. And yet, they cannot continue to send money to someone to whom they never see or speak. Courts generally will not order reimbursement for any past payments, but they will halt them from that point forward.

Note, however, the courts have clearly stated that in cases where communication breakdown is caused by the parent, it's unlikely child support will be terminated.

In either case, allegations alone are not likely to be enough when it comes to proof of constructive emancipation. Our attorneys will help ensure you are prepared to make your case effectively before the court.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

In Matter of Jose R. v. Yvette-Ortiz M., Dec. 2, 2014, New York Supreme Court, Appellate Division, First Department

More Blog Entries:

Retaining Inheritance in New York City Divorce, Dec. 1, 2014, Brooklyn Child Support Lawyer Blog

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