May the non-custodial parent deprived of seeing a child terminate his or her child support obligation? According to two March 16, 2016 decisions of the Appellate Division, Second Department, the result may turn on both who is to blame and how old is the child.
In Brinskelle v. Widman, and in response to his ex-wife’s post-divorce Family Court application for an upward modification of child support, a father asked to be relieved of his obligation to support the parties’ 18-year-old son on the ground that the son was emancipated within the meaning of the parties’ stipulation. The father also sought to terminate his support obligation for his 14-year-old daughter on the ground of constructive emancipation. After a hearing, Suffolk County Support Magistrate Denise Livrieri granted the mother’s petition and denied the father’s petition. Suffolk County Family Court Judge Bernard Cheng denied the father’s objections and the father appealed.
The Second Department affirmed. Under New York law, a parent is required to support a child until the child reaches the age of 21 (see Family Ct Act § 413[a]). However, a child may be deemed emancipated if he or she is fully self-supporting and financially independent from his or her parents. Alternatively, the parties may provide in a written agreement for emancipation contingencies. Here, the father failed to meet his burden to prove that the 18-year old son was emancipated as defined by the parties’ divorce stipulation of settlement: that the child had reached the age of 18, and was employed at least 30 hours per week, and was not a full-time student.
The father also argued that the parties’ 14-year old daughter was constructively emancipated. Here, despite the fact that it was not the father’s fault his 14-year old daughter was refusing to see him, she was not old enough to be punished. The father would remain liable to support her.
Under the doctrine of constructive emancipation, where a minor of employable age and in full possession of his or her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control, he or she forfeits his or her right to demand support. However, “where it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her visitation rights, the child will not be deemed to have abandoned the parent.”
Here, the Second Department held that even accepting the father’s testimony that the parties’ 14-year old daughter had voluntarily and without cause rejected his efforts to maintain a relationship with her in an attempt to avoid his parental control, the daughter was not “of employable age,” and thus, the father, as a matter of law, could not establish the daughter’s constructive emancipation.
In Matter of Argueta v. Baker, the parties were the parents of a child born in December 2004. The father’s support obligations were fixed by a 2009 consent order. In 2013, the mother moved with the child to Florida without the father’s consent.
In March 2014, the father petitioned the Suffolk County Family Court to suspend or terminate his child support obligations on the ground that the mother was interfering with his visitation. Support Magistrate Aletha V. Fields after a hearing dismissed the father’s petition. Suffolk County Family Court Judge Bernard Cheng denied the father’s objections to that order.
The Second Department reversed. The appellate court noted:
interference with visitation rights can be the basis for suspension of child support, but such relief is warranted only where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights.
Here, the father had demonstrated that the mother actively interfered with and deliberately frustrated his visitation with the child by failing to provide him with the child’s Florida address, preventing him from seeing the child when he was in Florida, and failing to notify him when the child was in New York. Therefore, the Family Court should have granted that branch of the father’s petition which was to suspend his child support obligations.
Thus, it would appear that unless the non-custodial parent’s deprivation of visitation is the direct consequence of the actions of the custodial parent, the child support obligation will not be suspended or terminated unless the non-custodial parent is both without fault and the child is of employable age.
In Argueta, Ralph G. Reiser, Esq.of Syosset, represented the father.
In Brisnskelle, both parties represented themselves.