Two recent decisions of the Appellate Division, Second Department, have upheld maintaining a father’s child support obligations despite alleged changes to the nature of the relationship with the child.
in Lovaglio v. Wagner, the father contended that the parties’ then 20-year-old daughter had moved in with him when she entered college. Previously, the daughter resided with the mother in New Jersey since she was 5 years old. However, the father claimed that she began residing with him full-time in Brooklyn after she enrolled in a college in Manhattan during the winter 2015 semester.
After a hearing, Support Magistrate John M. Fasone held that the father failed to establish that the daughter’s residence had changed and denied the father’s petitions to terminate his child support obligation and to receive child support from the mother. In its November 22, 2017 decision, the Second Department affirmed the order of Kings County Family Court Judge Judith Waksberg that had denied the father’s objections to Magistrate Fasone’s order.
The Second Department noted that a change of residence may constitute a change in circumstance warranting a modification of child support. Here, however, even though the daughter stayed with the father on some evenings during the week while attending college, it was held that the daughter had continued to reside with the mother.
The appellate court upheld Magistrate Fasone’s reliance, in part, upon the mother’s continuing to provide material support to the child. The mother had established that she paid for the daughter’s automobile lease, E-ZPass bill, and cell phone bill into the summer of 2016 (the E-ZPass records demonstrated that the daughter often crossed bridges from New York into New Jersey). The mother also had paid rent for an apartment in which the daughter resided prior to 2016. As a result, the Second Department held that the father failed to demonstrate that there had been a change in circumstances sufficient to warrant the termination of his child support obligation and an award of child support in his favor.
In Basile v. Wiggs, the Second Department on December 6, 2017, upheld the order of Westchester County Family Court Judge Hal B. Greenwald that denied a father’s objections to the order of Support Magistrate Allen Hochberg which denied the father a downward modification of his child support obligation.
The April, 2006 stipulation of settlement of the parties’ divorce provided that the father was to pay $2,150 per month in child support for their now 11-year-old child. In October 2014, the father moved for a downward modification of his child support obligation, alleging that the child should be held to be emancipated because of the breakdown of the father’s relationship with the child.
Under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support. However, a child’s mere reluctance to see a parent is not abandonment. Where it is the parent who causes a breakdown in communication with the child, or has made no serious effort to contact the child and exercise visitation rights, the child will not be deemed to have abandoned the parent.
A breakdown in communication between a parent and a child may be the result of the parent’s malfeasance, misconduct, neglect, or abuse. Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated.
Here, the Second Department held that the father failed to satisfy his burden to prove the child was constructively emancipated. The father did not show that a substantial change had taken place in his relationship with the child or that the father consistently made a serious effort to maintain a relationship with the child. Furthermore, the father failed to show that his own behavior was not a primary cause of the deterioration in his relationship with the child. The father’s petition for a downward modification of his child support obligation was properly denied.
In Lovaglio, Isabelle L. Curro, of Manhattan, represented the mother. Anthony M. Bramante, of Brooklyn, represented the father.
In Basile, Richard A. Medina, of Manhattan, represented the father.