Long Island Family Law and Mediation Blog
Parents have a duty to support their children, in New York, until the age of 21 unless they are sooner emancipated. The doctrine of constructive emancipation has been developed by the Child Support Standards Act and corresponding case law in New York. Children can be emancipated because they get married or join the military. Other ways for emancipation to occur is where a child of employable age becomes economically independent or voluntarily and without cause, abandons a parent or the parent’s home, against the will of the parent and for the purpose of avoiding parental control. New York courts have held that in these cases the child forfeits his/her right to demand support. It is a difficult case for the moving party to win. I have argued both sides of the issue at trial as a Long Island Child Support Attorney.
Economic independence is usually an easier concept to grasp than the abandonment cases. Economic independence commonly occurs, according to the Child Support Standards Act law, when a child is working full time and is self supporting. The debate under this aspect of constructive emancipation usually comes under the topic of whether or not the child is generating sufficient income even when working full time. Therefore, when a child of employable age is working but still receives help from a parent for important economic items like food, utilities and insurance the child likely is not to be deemed emancipated. This might even be the case when the child does not reside with either parent but still needs help for financial support.
Although economic independence is not always an easy call, abandonment cases can even be trickier and more subjective. The courts in New York have held that a child’s right to support and the parent’s right to custody and services are reciprocal. A parent may impose reasonable regulations. When the abandonment fact is that the child left a parent’s home, the debate can be whether or not it was against the will of the parent to avoid parental control and whether or not there was good cause. Good cause is the key phrase in that situation which the court would need to decide in disputed matters. The foregoing abandonment situation applies when dealing with the leaving of the home of what was the residential custodial parent.
But what about the rights of a non-residential custodial parent? The doctrine of constructive emancipation is applicable to the non-custodial parent where the child unreasonably refuses all contact and visitation. This may be found when the child still lives with the custodial parent yet refuses, unreasonably, all contact and visitation with the non-residential custodial parent. Parental alienation, unfortunately, is all too common in these situations. When the residential custodial parent systematically engages in a pattern of destroying the other parent’s relationship with the child(ren) the court might find that the residential custodian no longer deserves child support. A constructive emancipation finding is even likelier if the relationship has been poisoned to a degree that no reconciliation is possible.
There are, however, in most cases multiple perspectives about why the relationship has broken down. Questions include, was the withdrawal by the child with good cause or not? Is the non-custodial parent responsible for the withdrawal? What steps has that parent taken to try to repair the relationship? If the situation can be blamed on the non residential custodial parent, a court is unlikely to terminate child support. The case law clearly states that when the breakdown in communication with the child is caused by the non-custodial parent, the child will not be deemed to have abandoned the parent. But, when the evidence establishes that without a good cause, a child that lives with one parent wants no relationship with the other parent, a court can find that there is not parent-child relationship. In such a case, where the child has renounced and abandoned that non custodial parent, courts have held that requiring reimbursement for support of that child would result in an injustice.
The doctrine of constructive emancipation might be raised as a defense to a new application for child support or as the basis to terminate a prior order or judgment requiring support. This request for termination is considered a modification of the support order. A party seeking to modify the child support provision of a prior order or judgment must demonstrate a substantial change of circumstances from the time of the last order to the date of the request. In cases of orders that already exist, if a substantial change of circumstances is not found, the request to modify or terminate should be denied and the application dismissed. The substantial change of circumstances is a pre-requisite to proceeding with the modification case or to get your foot in the door so to speak. If that initial showing is met, only then can a court consider the other evidence for a party to prevail on their constructive emancipation claim.
The burden of proof of proof for constructive emancipation is on the moving party. Mere allegations are not enough. A showing to support the allegations must be made. Preponderance of evidence, or that the allegations are more probably true than not, is the burden of proof for child support matters. The presentation of evidence at a hearing or trial is tricky, even for lawyers. It is advisable to use an experienced family law attorney to help navigate through your case. Give me a call if you want to discuss your constructive emancipation questions. It would be my pleasure to speak with you about it.