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[1][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.

Continue Reading Child Support and the Parent Deprived of Visitation

Two of three November 5, 2014 custody decisions of the Appellate Division, Second Department, reversed Family Court determinations.

In the only affirmance in Mondschein v. Mondschein, the Second Department upheld the order of Westchester County Family Court Judge David Klein which, after a hearing, granted a father’s petition to modify the custody provisions of the parties’ divorce (2011) stipulation of settlement, awarding the father sole legal and physical custody of the parties’ two younger children, with supervised visitation to the mother. Affirming Judge Klein, the Second Department noted:

Since custody determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the Family Court’s findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record.

Here, contrary to the mother’s contention, the appellate court found that Judge Klein had properly considered the totality of the circumstances, and that the record supported his determination that there had been a sufficient change in circumstances requiring a change in custody to protect the best interests of the parties’ two younger children. That record included the hearing testimony and the recommendation of the court-appointed forensic evaluator.

In Burke v. Cogan, the Second Department reversed the determination of Suffolk County Family Court Judge Martha Luft that had dismissed the petition of a mother to modify a prior custody order by awarding her sole residential custody of the parties’ 13 year-old child. The appellate court awarded the mother such custody.

Continue Reading Appellate Reversals of Custody Decisions

In two decisions this month, appellate courts reversed Family Court orders and dismissed petitions for grandparent visitation.

In Pinsky v. Botnick, the petitioner was the paternal grandmother. Her son had died at the age of 35, survived by his widow and 4 children, then ages 9, 7, 5, and 3. Her Family Court petition for visitation was filed approximately six weeks after her son’s death.

At the hearing, the grandmother testified that she had a close relationship with the children. The grandmother also acknowledged that the mother was a fit parent. However, according to the mother, the children were hysterical about the court proceeding, fearful that the grandmother would take them away from their mother. The attorney for the children informed the Family Court that the children did not wish to see their grandparents.

Nassau County Family Court J.H.O. (and former Judge) Elaine Jackson Stack denied the mother’s application to appoint a neutral forensic evaluator. The mother retained Peter J. Favaro, Ph.D., whose report was received in evidence. Dr. Favaro reported that the children were experiencing a “complicated bereavement”: the three older children had reported having bad dreams about seeing their grandmother and that she would take them away. Dr. Favaro concluded that forcing interaction between the children and grandparents would only strengthen those fears.

Continue Reading Grandmothers Denied Visitation in Two Recent Appellate Reversals

Parenting Time Calendar.jpgHoward v. Laird, a recent decision of New York’s Appellate Division, Second Department, highlights the usefulness of a parenting-time calendar when entering a divorce settlement.

In Howard, the appellate court had occasion to reverse an initial post-divorce Supreme Court decision in a visitation dispute, and to send the case back to the lower court for still further proceedings.  At issue was a parenting-time dispute over whether thw weekday visits of the father during the school year continued into the Summer recess. The source of the problem was an apparent gap or oversight in the parents’ divorce settlement stipulation.

What a colossal waste of the resources of the courts and the time, energy and money of the parents! Such continuing post-divorce litigation can only damage the post-divorce relationship between the parents. The impact of such continuing battles on the children, and the children’s relationships with their parents, cannot be understated.

Had the parties themselves, or their counsel, simply prepared and distributed a parenting-time calendar when the settlement stipulation was being negotiated and drafted, gaps and oversights could have been eliminated. The parents would have reached a more workable and practical stipulation.

What is a parenting-time calendar? It’s simply a calendar upon which the visitation schedule is written. It will include the basic plan, plus secular and religious holidays, school recesses, birthdays, and other dates of significance. Activities of the children, important family celebrations, and other matters may be included.

By completing the calendar, say, for the two years following the settlement, parents are able to catch most oversights and conflicts. When visualized in this fashion, changes to a settlement stipulation can be made at inception.

Moreover, posting the calendar on the refrigerator, or even online, for the children to see can help them incorporate the schedule into their lives.

How does one go about making a parenting time calendar? There’s no wrong way. Take any printed calendar and fill it out. As a practical matter, I use Microsoft Outlook and Gmail calendars at work, and both can easily be adapted to make a separate parenting time calendar or to add parenting time to a single all-purpose calendar. There are also a host of online and downloadable programs available at varying prices and even at no cost. Here are a few, without endorsement of any:

No parent should complete divorce proceedings without obtaining this very simple device which will so easily avoid years of tension, anxiety and heartache.