Is a child who leaves one parent’s residence to live with the other “constructively emancipated,” depriving the new residential parent of child support relief? In its May 30, 2018 decision in Root v. Root, the Appellate Division, Second Department, said no.
The parties were married in 1992, and have two children together. The parties were divorced in 2012, with the judgment incorporating, but not merging the parties’ stipulation of settlement. The parties had agreed to joint custody of their children, with residential custody to the mother. Pursuant to the judgment, the father was obligated to pay the mother child support and a pro rata share of certain add-on expenses.
In August 2015, the father filed a petition to modify his support obligation. The father argued that the parties’ son had moved in with him and, therefore, he was entitled to an offset against his child support obligation for the amount he was expending to support that child. The mother opposed the petition, arguing that the father was not entitled to an offset because the son was constructively emancipated.
After a hearing, Westchester County Family Court Support Magistrate Rosa Cabanillas-Thompson issued an order in which she found that the child was constructively emancipated, and thus that the father was not entitled to an offset against his child support obligation for the amount he was expending to support that child. Family Court Judge Nilda Morales Horowitz denied the father’s objections to the Support Magistrate’s order, and the father appealed.
The Second Department reversed: the Support Magistrate should not have found that the son was constructively emancipated and that the father was not entitled to an offset against his child support obligation for the amount he was expending to support that child.
The appellate court noted that a child may be deemed constructively emancipated if, without cause, the child withdraws from parental supervision and control. Thus, a child of employable age and in full possession of his or her faculties who voluntarily and without cause abandons his or her home, against the will of the parents and for the purpose of avoiding parental control, forfeits the right to demand support.
Here, however, the mother failed to sustain her burden of establishing that the parties’ son was constructively emancipated. The son’s move from one parent’s home to the other parent’s home did not constitute constructive emancipation, as [the son] was neither self-supporting nor free from parental control.
Accordingly, the matter was remitted to the Family Court, Westchester County, for a recalculation of the father’s child support obligation.
Notably absent from the decision was any reference to what the parties’ Stipulation of Settlement did nor did not provide in the event of a change of residence of a child. Was the change of residence deemed an emancipation event? Did the Stipulation contemplate the event? Also, why would the relief be an offset based upon what the father was “expending to support that child?” Why would there not be a redermination based upon offsetting C.S.S.A. presumptive formula awards?
Daniel L. Pagano, of Yorktown Heights, represented the father; the mother represented herself.