Constructive Emancipation: The Breakdown of a Relationship Between Parent and Child and the Termination of Child Support
Within the last month, the Appellate Division, Second Department, has decided several interesting family law cases. One, in particular, directly answers a question I am frequently asked, which, in some form, goes like this: My son refuses to visit me; do I have to pay child support for him?
The answer, as supplied by the Court in the case of Gold v. Fisher, is- it depends.
. . . .a child of employable age who actively abandons the non-custodial parent by refusing all contact and visitation" may forfeit any entitlement to support In contrast, where it is the parent who causes a breakdown in communication with his child, or has made no serious effort to contact the child and exercise his visitation rights, the child will not be deemed to have abandoned the parent.
The parent seeking to have the child “constructively emancipated” has the burden of proof. From my experience, given that this is a drastic remedy, which may punish the custodial parent (who may or may not be at fault) as much as the child, courts strive to discover the true origins of breakdown of non custodial parent-child relationship.
If the evidence shows that the non-custodial parent is in any way at fault for the estrangement, the application will be denied and the obligation to pay support will continue. If the non-custodial parent is blameless, support will be terminated.
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Comments (3)
Read through and enter the discussion by using the form at the endRichard - March 27, 2009 10:18 PM
HI, my name is Richard Claudio and i have a unique situation with my daughter were i need an opinion on this matter please.MY daughter is 19 years old and has a 9 month old baby her self. My question is , should or do i have to keep paying her child support all though she decided to make an adult decision herself to have a child of here own? if this situation emancipatable or does the new york law state that i will still have to support here even if she has a child of her own? is this possible, cause it just dont sound fair to me. thank you so much for your time.
shonna - March 31, 2009 11:47 PM
I have a 15 yr old stepdaughter that wishes to emencipate or somehow get her biological mother out of her life. We have taken care of her since 2002, with her mother in and out of her life. For 3 months now she has not spoken to her and refuses to have anything to do with her mother. Me and her father took her away from her do to verbal and physical abuse. what rights do we have or how do we need to go about this. Does my stepdaughter need an attorney, can we somehow remove all rights, how does this work? HELP
Wendy - July 16, 2010 11:56 AM
I have a son who just turned 18. Over the past 4 years he has been in trouble at school, swearing at teachers, failing school, using drugs, he has been physically and verbally abusive to me, I am his mother, and to his step-father He has failed drug tests for THC and Morphine. He is currently repeating the entire 11 grade this year and I do not think he passed anything again. Which means he is now 18 and possibly repeating 11th grade for the 3rd time. Last month I realized that I was missing a necklace well at first I thought only a necklace but he had actually taken a bunch of my and my husbands gold jewelry. I kicked him out of the house, he is staying with his girlfriend's parents and I have been sending them $100.00 a week to feed him. Apparently someone told him that I have to pay him child support so he can get an apartment can this be true. I have school records and police records to prove that I did all that I could do for this kid. I had Childrens Coordinated Services involved, a Therapist, a probation officer, we even had to see a judge every six weeks for a while. My son was in jail for ten days about 1 1/2 years ago for slapping me on the back and punching/putting a hole in a door in our house, all because I would not let him go to a party because he had cut school. I was given an order of protection and he was court ordered to live at a group home for two months.