Parent Who Is Prevented From Seeing Child By Other Spouse Is Not Obligated To Pay Child Support

I have previously written about situations where a child becomes constructively emancipated as a result of the child’s refusal to have contact with the parent.  What happens in situations where a parent is prevented from seeing the child by the other parent? In Coull v. Rottman, 131 A.D.3d 964 (2nd Dept. 2015) the Appellate Division, Second Department suspended father’s obligation to make child support payments.

The father last visited his son in February 2010. For the next several months, he said he would go to the exchange location on visitation days, but often neither the mother nor his son would be there. In one instance, both the mother and the child appeared, but the mother said the boy would not leave the car.

The court also found that the mother assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor.  She further stated many times that she would never allow the father to see his child and would do “whatever it takes” to keep the boy away from him.

Given the circumstances, the court concluded that the father’s obligation to pay child support should be suspended.  While parents have a duty to continually support their children until they are 21 years old, where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended.

Further, the relationship between the father and the child had deteriorated and while the boy had participated in therapy for several months to foster a relationship with his father, he remained “vehemently opposed” to any type of visitation with the father.  Since the child was 13 at the time of the hearing, and the judge had placed great weight on the child’s wishes, since he was mature enough to express them.

A similar result was reached by the court in Argueta v. Baker, 2016 N.Y. Slip. Op. 01838, where the Appellate Division held that the father had demonstrated that the mother actively interfered with and deliberately frustrated his visitation with the child by failing to provide him with the child’s Florida address, preventing him from seeing the child when he was in Florida, and failing to notify him when the child was in New York. Therefore, the father was entitled to suspension of his child support obligations.

Both parental alienation and parental interference cases turn on specific proof of the child’s and parents’ actions. They may also require testimony of the child. If the parental relationship with the child is already bad, forcing the child to testify is not likely to improve it.

Constructive Emancipation and the Child’s Conduct

I have previously written about constructive emancipation issue and also addresses some of the applicable law in another post.  Generally, a child can become emancipated through his actions when the child either refuses to have contact with the parent or voluntarily abandon’s parent’s home. However, what happens when a child engages in abusive conduct directed toward the non-residential parent?

In a recent decision, Cornell v. Cornell, 2015 NY Slip Op 25030 (Sup. Ct. Monroe Co. 2015), the court held that where a child’s conduct directed at the parent is abusive and inappropriate, the court can construe such conduct as abandonment. In Cornell, the evidence presented to the court established that the child engaged in communications that established “a substantial hatred and/or disrespect for the mother”. In the court’s view,

a child who utters such terms about their parent cannot realistically expect this court to ignore such conduct and order the maligned parent to pay any form of support for the child. A child over the age of 18, seeking reimbursement for college expenses, cannot use such language toward a parent and then, either directly or through his other parent, seek child support, and/or payment of college expenses. No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.

Thus, the court emancipated the child and the mother was no longer obligated to contribute toward support of the child or pay a portion of his college expenses.

This decision is particularly interesting because of the court’s emphasis on the child’s negative conduct directed at the mother. The court also mentioned that the child refused subsequent contact with the mother. While refusal to have contact is significant, according to the controlling cases, the court also has to analyze the parent’s efforts to reestablish contact with the child. Unfortunately in Cornell, the court did not discuss what specific actions the mother undertook to reestablish contact with the child.

Ultimately, I think that the court has reached result.  It will be interesting to see if this decision will be appealed and what the Appellate Division’s decision will be.

Constructive Emancipation, Burden of Proof and Contact With the Child By Non-Custodial Parent

I often see cases involving constructive emancipation which typically arise when the child refuses to have contact with the non-custodial parent.  If the contact cannot be reestablished after a period of time, the non-custodial parent can move to terminate the child support obligation, assuming that the non-custodial parent was not at fault for the breakdown in the relationship and the child is of the employeable age.  Burden of proof ofconstructive  emancipation rests on party making the assertion.  Constructive emancipation cases are not easy to prove and are factually intensive.  I have previously written about various issues in constructive emancipation here.

A recent example of such case was Dewitt v. Giampietro, 66 A.D.3d 773 (2nd Dept. 2009).  According to the Appellate Division, although the daughter refused to have contact with the father after some incident which was not described, the father ceased making attempts to reestablish contact with daughter after approximately one month.  According to the Appellate Division, one month period of trying to reestablish a relationship with the daughter could not be considered as a serious effort by the father.  The court also noted that the daughter testified that she loved her father and would be willing to re-establish visitation gradually through counseling.   According to the Appellate Division, the child’s reluctance to see parent is not considered to be abandonment.

Accordingly, if a non-custodial parent is in a situation where the child of employable age, generally high school graduate or older, is refusing to have any contact with the parent, the parent must keep on trying to reestablish contact for a period of time in excess of several months.  Any such contact may take several different forms, and phone calls, email, letters, postcards, and even text messages may be utilized.  It is important that the parent remembers the child’s birthdays and other special occasions.  Generally, the courts are reluctant to terminate child support and will do so only if the non-custodial parent will demonstrate that the continuing pursuit of the relationship with the child would be fruitless.

Child Support, Abandonment and Constructive Emancipation of a Child

I am asked occasionally whether a parent’s child support obligation can be terminated on the grounds that the child stopped all contact with the parent in order to avoid parental control. My usual response is that it can be done, but the parent must establish either abandonment or constructive emancipation, and faces a substantial burden of proof.
The Family Court Act §413 mandates that parents support their children until they reach the age of 21. The courts in New York have held that a child’s right to support and the parent’s right to custody and services are reciprocal, and that a parent may impose reasonable regulations. Generally, where a minor of employable age and in full possession of 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, the child forfeits his/her right to demand support. Roe v. Doe, 29 N.Y.2d 188 (1971); Matter of Ontario County Department of Social Services (Christopher L.) v. Gail K., 269 A.D.2d 847 (4th Dept. 2000), leave denied, 95 N.Y.2d 760 (2000).
While the duty to support is a continuing one, the child’s right to support and the parent’s right to custody and services are reciprocal. Roe v. Doe, 29 N.Y.2d 188 (1971). Thus, a parent, in return for maintenance and support, may establish and impose reasonable regulations for his/her child. In Roe v. Doe, supra, the Court of Appeals explained:

Accordingly, though the question is novel in this State, it has been held, in circumstances such as here, that where by no fault on the parent’s part, a child “voluntarily abandons the parent’s home for the purpose of seeking its fortune in the world or to avoid parental discipline and restraint [the child] forfeits the claim to support” . . . To hold otherwise would allow, at least in the case before us, a minor of employable age to deliberately flout the legitimate mandates of her father while requiring that the latter support her in her decision to place herself beyond his effective control.

The doctrine of constructive emancipation is applicable to the non-custodial parent where the child unreasonably refuses all contact and visitation. Matter of Commissioner of Social Services (Jones) v. Jones-Gamble, 227 A.D.2d 618 (2nd Dept. 1996). In that case, the court held that the evidence clearly established that the child wanted no relationship with her father. Despite the father’s prior support payments, there was essentially no parent-child relationship between them. The appellate court held that, to require the father to provide reimbursement for the support of a daughter who had renounced and abandoned him would have clearly resulted in an injustice under the facts of that case.
In the Fourth Department case, Perez v. Perez, 239 A.D.2d 868 (4th Dept. 1997), appeal dismissed, 91 N.Y.2d 956 (1998), the record established that the parties’ 18 year old daughter had refused to visit with the father or to have any relationship with him. That child was found to be a minor of employable age and in full possession of her faculties, who had voluntarily refused to have a relationship with plaintiff. The child thereby forfeited her right to support from her father. Accordingly, the Fourth Department rejected the mother’s contention that the lower court erred in modifying the parties’ divorce decree by suspending father’s obligation to pay child support for the parties’ child until further order of the court.
Children of employable age and in full possession of their faculties who voluntarily and without cause abandon their home, against the will of their parents and for the purpose of avoiding parental control, forfeit their right to demand support, even if they are not financially self-sufficient. Guevara v. Ubillus, 47 A.D.3d 715 (2nd Dept. 2008). In that case, petition for child support was denied where the petitioner, without good cause, abandoned the mother’s home on her 18th birthday in order to avoid parental control and to gain independence from her mother’s restrictive household rules; the petitioner was found to have abandoned her mother’s home against the mother’s will and without cause.
In Rubino v. Morgan, 224 A.D.2d 903 (3d Dept. 1996), the Appellate Division held that the lower correct properly terminated the father’s support obligation on the grounds that his daughter’s refusal to visit with him and the child’s unprovoked rejection of him constituted abandonment. The Third Department noted that at the time of the hearing, the daughter was 17 years old, and she had refused to visit with the father since she was 14 years old. Even after the daughter refused to visit with her father, he continued for years to send letters and cards to her. The letters were never answered. He also attempted to talk with the child, without success. His actions and requests were not arbitrary, and there was no evidence of malfeasance, misconduct or neglect. The Appellate Division upheld the lower court’s findings that the daughter chose to permanently breach her relationship with the father, notwithstanding her generalized claim of “emotional abuse”, and that the father did not contribute significantly to his daughter’s decision to distance herself from him.
Furthermore, where it can be established by the non-custodial parent that the custodial parent has unjustifiably frustrated the non-custodial parent’s right of reasonable access, child support payments may be suspended. Usack v. Usack, 17 A.D.3d 736 (3d Dept. 2005). In that case, the father had encouraged the children’s unbridled enmity toward, and total exclusion of, their mother through a course of conduct calculated to inflict the most grievous emotional injury upon her. The Appellate Division held that mother’s child support obligation should have been suspended due to the father’s deliberate actions in alienating the parties’ children from her.