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.


Continue Reading Child Support Obligations Do Not Automatically Result Upon Relationship Changes

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

Five appellate decisions this month have dealt with the propriety of joint custody awards.

On March 20, 2014, the First Department upheld New York County Supreme Court Justice Lori S. Sattler‘s decision to continue the parents’ joint custody arrangement. In Boyce v. Boyce, the appellate court agreed that the mother had failed to make an evidentiary showing sufficient to warrant a hearing on her request to change that arrangement.

For the appellate court, the fact that the parties, who have joint decision-making authority, have different views on education or extracurricular activities did not mean that they could not co-parent. Indeed, the parties had anticipated that they may have these disagreements and provided for a procedure to deal with them in their stipulation of settlement. In the event the procedures failed, as occurred here, the parties reserved their right to resolve such matters in court.

Again supporting joint custody, in Johanys M. v. Eddy A., the First Department on March 11, 2014 reversed the order of Family Court Bronx County Referee Jennifer S. Burtt that had awarded sole custody of a child to the mother.

Referee Burtt had found that the parties had similar abilities to provide for the child financially; that there was no difference in the emotional bonds that they each had established with the child;and that the child had essentially spent an equal amount of time with each party. Nevertheless, the Referee awarded custody to the mother on the grounds that she no longer worked outside the home and thus was “fully available” to care for the child (and a newborn), while the father worked outside the home. The Referee was also concerned about the father’s testimony about the mother because it was “globally negative.”

The First Department, however, found that the it was in the best interests of the child for the parties to have joint legal custody. Although sharing physical custody was no longer feasible because the parties now resided in different boroughs, there was no evidence that the parties’ relationship was characterized by acrimony or mistrust.

Moreover, over the course of the child’s life, the parties had been able to resolve any visitation or custody disputes between themselves. They also appeared to have been in accord with respect to the child’s best interests, despite their failure to communicate directly with each other.

The [father] should not be deprived of a decision-making role in the child’s life because he is unable to care for the child full time. The record shows that he has a strong interest and plays an active role in the child’s life, including aggressively seeking out necessary services to foster the child’s development, and that he arranged for child care while he worked.

Here, although the father’s testimony may have painted an unfairly negative picture of the mother, there was no evidence that he disparaged her in the presence of the child. The record showed that his concern for the child’s welfare was paramount.


Continue Reading Joint Custody: This Month’s Five Appellate Decisions

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As has been the trend, a court has held that despite what may be the superior parenting skills of one parent, that parent may be denied custody if that parent does not promote the relationship of the children with the other parent.

In an April 26, 2012 decision, the Third Department in Jeannemarie O. v.