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Father Demonstrated Child Was Constructively Emancipated/Child Support Obligation Terminated

The Second Department determined Family Court should have terminated father’s child support obligation because the child was “constructively emancipated:

””It is fundamental public policy in New York that parents are responsible for their children’s support until age 21″ … . “However, 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. A child’s mere reluctance to see a parent is not abandonment”… . ” [W]here 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’… . Such a breakdown in communication between a parent and a child may result from 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 … . “The burden of proof as to emancipation is on the party asserting it”… . * * *The evidence at the hearing established that the father consistently made a serious effort to maintain a relationship with the subject child during the relevant time period. The testimony adduced at the hearing demonstrated that the father regularly called the subject child at the mother’s home, but his calls would either go unanswered, or, according to the mother, the subject child would refuse to speak with him. The father testified that he left messages indicating his willingness to participate in counseling with the subject child, but these offers were not accepted. On special occasions, the father left gifts and cards for the child that the child did not acknowledge. The father also contacted the child’s therapist and suggested therapeutic visitation with the child. However, the child refused this offer. In addition to demonstrating the father’s serious efforts to maintain a relationship with the child, the evidence demonstrated that, during the relevant period of time, the father’s behavior was not a primary cause of the deterioration in his relationship with the subject child. Based on the evidence presented at the hearing, the father satisfied his burden of demonstrating that the subject child was constructively emancipated, and a finding in the father’s favor in connection with this issue is warranted by the facts. Matter of Jurgielewicz v Johnston, 2014 NY Slip Op 01325, 2nd Dept 2-26-14

 

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