New York Child Support Issues – Constructive Emancipation

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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 the 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. Probably “joined the military” does not include part time reserve status. 

Just because a child has moved out and has a job does not constitute emancipation and will not terminate  the non-custodial parent’s child  support obligation. NYC child support 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 18, and possibly even over the age of 16, who has full-time employment , is living on his or her own, and is not receiving any financial help from anyone, 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 can,  under New York State law, 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, the 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 against the custodial parent will often be sufficient to defeat a claim of abandonment. A few courts will find emancipation when children over 18 leave home because they were beyond parental control, through no fault of the custodial parent.  

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

“Constructive Emancipation” is a legal doctrine for situations where a child refuses to have any contact or communication with one of his 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 and makes an application to terminate his child support obligation. The non-custodial parent can also bring a petition against the custodial parent to terminate child support on these 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 of constructive abandonment. 

There are only a handful of reported New York appellate court cases where courts have actually  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 a significant effort to have contact with the child, including going to court to assert his rights, but was totally unsuccessful. He will not win if he only has supervised visitation.  A mere breakdown in the relationship is not enough .The party claiming constructive emancipation (usually the father)  will  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 his  own actions. 

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 love, 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 teenagers, because courts recognize that most mature teenagers 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, many courts  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  to try to repair the relationship and make the custodial parent pay for the cost of 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. preferably one with a lot of experience in custody, visitation, and child support cases. 

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