At 18, the child becomes and adult. The parents no longer have custody. However, in New York, the parents’ duty to support does not end until the 21st birthday.
On other other hand, the parents’ duty to support may be relieved if a child attains economic independence through employment, entry into military service or marriage. Further, the child may be deemed constructively emancipated if, without cause, they withdraw from parental supervision and control.
Consider Baker v. Baker, a June 12, 2015 decision of the Appellate Division, Fourth Department. The parties’ son was constructively emancipated in June, 2012 when he moved out of the mother’s residence and into an apartment with friends in an effort to avoid the mother’s rules requiring him to attend school and not use illicit drugs. Until then, the father had been paying child support to the mother. However, after “being treated for withdrawal,” the son moved in with the father.
The question for the court was whether the child’s unemancipated status was revived entitling the father to collect child support. Supreme Court, Niagara County Justice Catherine R. Nugent-Panepinto denied the father’s application.
The Fourth Department reversed. The appellate court agreed with the father that the lower court erred in concluding that the child’s return to parental custody and control neither revived his unemancipated status, nor reinstated the support obligations of his parents
A child’s unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status. . . . Generally, a return to the parents’ custody and control has been deemed sufficient to revive a child’s unemancipated status.
Although most of the cases concerning a revival of a child’s unemancipated status have involved a child’s return to the home that he or she abandoned versus the home of the noncustodial parent, the Fourth Department concluded that the return to the noncustodial parent’s supervision and control does not preclude a revival of unemancipated status.
The mother argued that because the father had stipulated to the earlier order that the child was emancipated, therefore termination the father’s support obligation, the father was required to establish an unanticipated and unreasonable change of circumstances. However, the Court held that despite the father’s stipulation that the child was emancipated, the child is not bound by the terms of that agreement, and the issue in this case was the child’s right to receive adequate support. Even assuming, arguendo, that the father was required to show an unanticipated and unreasonable change of circumstances, the appellate court would nevertheless have concluded that the child’s substance abuse treatment and return to parental custody and control constituted such a change of circumstances.
In our view, the reversion to unemancipated status under the facts of this case would promote the underlying statutory principles requiring parents to support children until they reach the age of 21.
The Fourth Department therefore reversed, granting that part of the father’s motion seeking an award of child support; remitting the matter to Supreme Court to calculate the amount of child support owed by the mother to the father.
Catharine M. Venzon, Esq., of Venzon Law Firm PC, of Buffalo, represented the father. Leonard G. Tilney, Jr., Esq., of Lockport, represented the mother.