Judge with gavel deciding child support emancipation issue

New York Child Support Issues – Constructive Emancipation

Under New York State Law, child support goes up to age 21 unless the child becomes emancipated. Emancipation is a legal term which, means one of the following:

  • The minor child gets married
  • The minor child joins the military
  • The minor child has left home and is self supporting
  • The minor child has abandoned home (run away from home) for no valid reason

In the first two situations Courts will order termination of any child support order pretty much automatically once they learn that the child has married or has joined the military, although I have not researched any cases about what New York courts do when a child over 18 joins the army reserve.

Contrary to what most people may think, just because a child has moved out and has a job is not sufficient to constitute emancipation and will not terminate the non custodial parent’s child support obligation. Courts will typically deny requests to terminate a child support order when the child does not make enough money to live decently, and depends on some type of financial assistance from the custodial parent.

On the other hand, a minor child who is over the age of 16 who has full time employment , is living on his or her own, is not receiving any financial help from the custodial parent, will likely be considered to be emancipated unless he or she is living in a poverty situation.

Children, once they have reached the age of 18 under New York State Law can file their own child support cases against either or both of their parents. If a child leaves home and goes after the custodial parent for child support, the custodial parent may assert a defense of abandonment, however courts are reluctant to leave a child without means of support.

Courts will instead look into the cause or causes of the child leaving home, and if this is in part due to the actions of the custodial parent, will likely leave the child support orders intact. Abandonment cases are hard for parents to win, due to obvious sympathy factors. Even unproven allegations of child neglect will often be sufficient to defeat a claim of abandonment. A few courts will terminate support for children over 18 who left home because they were beyond parental control, through no fault of the parent.

Constructive Emancipation Can Cause A New York Court To Terminate Child Support

conference between family lawyer and client

“Constructive Emancipation” is a legal doctrine for situations where a child refuses to have any contact or communication with one of the parents. This issue usually comes up in child support cases brought by the custodial parent against the non custodial parent, where the non custodial parent asserts constructive abandonment as a defense. The non custodial parent can also bring a petition against the custodial parent to terminate support on this grounds.

In either situation, a support magistrate cannot decide the issue, so the case will have to be transferred to a Judge to hear and decide the issue.

There are only a handful of reported appellate court cases where courts have terminated child support due to constructive emancipation. There are a number of reasons for this. Firstly, there is a great body of case law that holds that the non custodial parent’s duty to pay child support and his or her right to visitation are independent from one another.

In order to prevail on constructive emancipation the non custodial parent (usually the father) would have to show that he made multiple and consistent attempts to have contact with the child, including going to court to assert his rights, but was totally unsuccessful. He will not win if he even has supervised visitation. A mere breakdown in the relationship is not enough .The party claiming constructive emancipation (usually the father) will also have to prove that the refusal to allow contact, whether it is by the custodial parent (usually the mother), or by the child, is in no way the fault of the his own actions, even if these actions were long ago in the past.

Courts May Terminate Support Orders In Cases Involving Parental Alienation

Parental alienation is when one parent (almost always the custodial parent) purposefully influences the child or children to refuse to bond or communicate with the other parent. This typically pertains to “younger” children, and will rarely be found when the child or children are mature teen agers, because Courts recognize that most mature teen agers are sufficiently independent to make up their own minds and express their own wishes.

It is usually quite different to prove parental alienation without having a full forensic evaluation. Even in cases where the alienation is obvious to the court, the court may still be reluctant to terminate child support without written findings by a forensic evaluator to justify this drastic remedy.

Instead, courts may order family therapy and make the custodial parent pay for it.

Because the party who claims emancipation , constructive emancipation, or parental alienation has the burden of proof, and proof must be submitted using evidence in a form which is admissible by the court, he should seriously consider retaining an experienced family law attorney.

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