Exclusive Possession of Marital Residence Revisited

I have previously written about exclusive possession of a marital residence during a pending divorce action.  The applicable standard requires a showing of a marital strife and that the parties were unable to coexist in the same house.  I recently had an opportunity to litigate this issue in a situation where the parties’ conduct has not arisen to the level of marital strife, but the conflict was affecting the parties’ children.  Justice Richard A. Dollinger of the Monroe County Supreme Court reviewed and addressed this issue in L.M.L.v. H.T.N. a/k/a H.T.N., 57 Misc.3d 1207(A) (Sup. Ct. Monroe County 2017).

Having reviewed the history of the marital strife standard, Justice Dollinger wrote that lower courts have generally required more evidence of “strife” than the “petty harassments such as the hostility and contempt admittedly demonstrated herein that are routinely part and parcel of an action for divorce.”  However, he also noted that even minimal levels of domestic discord impact children living in a besieged household.  Given those circumstances, he wrote that:

The harm of a hostile home environment – populated with foul words, disparaging comments, loud demeaning voices, frequent arguments and verbal fights – and the fear for safety of the mother and the children rise, in this court’s view, to the level of domestic violence that [*10]mandates court intervention.Second, this court concedes that simply separating the parents may not end the torrent of verbal abuse directed at the other parent: even in new separate residences, a parent can unleashed verbal abuse and make demeaning comments about the other parent. The children will be exposed to that language, perhaps even harsher than what would be uttered in the company of both parents. But, the children will be spared the retort, the rising voices, the angry face-to-face confrontations that ensue when a parent begins a verbal argument. This difference — between the comments of separated parents living in separate residences and confrontations of parents living in the same residence — may be seem of minor importance to the judiciary, but it would seem to be easily classified as in the “better interests” of the children.

Justice Dollinger summarized the issues before the court as “[t]he mere suggestion that “exclusive use” should hinge, in any fashion, on the “voluntary establishment of an alternative residence” also suggests that preventing domestic violence may depend, in part, on the untenable notion that the convenience of one party’s ability to secure short-term housing away from the home is somehow more important than the emotional security of the children.”  The above holding represents a significant departure from the existing standard.  I agree with the decision and have always thought that the marital strife standard was unduly restrictive.  I will be interested to see if this decision will be followed by other court in pending divorce cases.

 

Update on Duration of Maintenance

When New York Legislature passed the “no-fault” divorce statute in 2010, it created a formula for calculating temporary spousal maintenance under DRL §236[B]5-a. However, it did not set forth a formula or specific rules for establishing spousal maintenance post-divorce in terms of both amount and duration.

Thus, family law attorneys have to rely on court decisions as a basis for estimating likely spousal maintenance awards. In Monroe County, in a typical maintenance case, it is likely that a spouse who is entitled to receive maintenance is likely to receive spousal maintenance with length of one third duration of the marriage.  This rule of thumb has been utilized by a number trial court judges and lawyers. However, not every trial judge subscribes to it, and each judge’s views of maintenance are likely to impact such awards.

In a recent case, Zufall v. Zufall, 2013 NY Slip Op 06142 (4th Dept. 2013),  The Appellate Division, Fourth Department, has confirmed this. In Zufall, the parties were married for 21 years and have five children, one of whom was emancipated. During the marriage, plaintiff was primarily a homemaker, raising the parties’ children while defendant worked as a correction officer. Shortly before divorce action was commenced, defendant retired at the age of 50 after 25 years of service. Plaintiff has been determined by the Social Security Administration to be 50% disabled, and she receives partial Social Security disability benefits of $622 per month plus workers’ compensation benefits of $400 per month. She also works 20 hours per week as a bartender, earning $5 per hour plus tips.

The court stated that after considering the statutory factors enumerated in Domestic Relations Law § 236 (B) (6) (a) — particularly, the length of the marriage; the income and property of the parties, including the marital property distributed by the court; and the present and future earning capacity of the parties,  “[w]ith respect to the duration of maintenance, however, we agree with defendant that the court’s award is excessive insofar as the court ordered defendant to pay maintenance until plaintiff turns 62, i.e., for approximately 18 years. We conclude that a term of seven years from the date of commencement of the action “should afford the plaintiff a sufficient opportunity to become self-supporting”.”

Given the circumstances, the trial level award of 18 years of maintenance was probably too long.  As a result, it appears that the Appellate Division, Fourth Department, has adopted a bright line rule of awarding spousal maintenance for one third of the duration of the marriage.

It will be interesting to see if this standard will survive any changes to the Domestic Relations Law that may come as a result of the Law Revision Commission’s report issued in May.

There Is No Right to Grounds Trial In A No-Fault Divorce Case

I have previously written on the issue of whether there was a right to trial in a divorce case brought under the no-fault grounds. Earlier, trial level decisions were split, with some courts holding that a party was still required to establish no-fault grounds at trial, and other courts holding that a sworn statement that the marriage was irretrievably broken for a period of 6 months or longer was sufficient to establish that party’s right to divorce.

Finally, the Appellate Division, Fourth Department, issued a decision resolving this issue. In Palermo v. Palermo, 2012 N.Y. Slip Op. 07528 (4th Dept. 2012), the court affirmed Justice Dollinger’s decision holding that there is no right to dispute an allegation of irretrievable breakdown under the no-fault divorce ground provided by DRL §170(7). Appellate Division agreed with the key language in Justice Dollinger’s decision which stated that:

Under DRL §170(7), the grounds cannot be disputed. Either a party swears the marriage is irretrievably broken or they do not. The grounds are established by the oath; there is no legislative requirement of a judicial finding on the reliability or veracity of the oath.

As the no-fault statute requires, in order for a judgment of divorce to be entered, all the issues relating to the divorce, including equitable distribution, maintenance, child custody and support need to be resolved before a party can be granted a divorce.

The Appellate Division’s decision in Palermo is significant since it clarifies the Legislature’s intent in creating a true no-fault divorce in New York. Further, as a result, the parties will be able to avoid costly grounds trials that usually result in added animosity between the parties.

Statute of Limitations and No-Fault Divorce

Since no-fault divorce became law in New York State almost 2 years ago, it was still unclear whether a statute of limitations would apply to to a cause of action under Domestic Relations Law §170(7), specifically, allegations that the relationship between the parties was irretrievably broken. Basically, this question can be asked in this way: from what date does the clock begin to run on this cause of action and when does the clock expire?  The answer was recently given by the Appellate Division, Fourth Department.

In a recent case, Tuper v. Tuper, 2012 N.Y. Slip Op 04467 (4th Dept. 2012), the Appellate Division held that the statute of limitations under DRL §170(7) does not begin to run while the relationship between the parties remain broken.  Specifically, the court held that a cause of action for divorce under the no-fault statute should be treated similarly to a cause of action for divorce based upon imprisonment of a spouse (DRL §170 (3), which is also governed by the five-year statute of limitations set forth in section 210).  In holding so, the Fourth Department relied upon the Court of Appeals’ decision in Covington v. Walker, 3 N.Y.3d 287, 291 (2004), which held that a cause of action for divorce based on imprisonment “continues to arise anew for statute of limitations purposes on each day the defendant spouse remains in prison for three or more consecutive years’ until the defendant is released.” The Appellate Division stated that “[l]ike a spouse serving a life sentence, an irretrievable breakdown in a married couple’s relationship is a continuing state of affairs that, by definition, will not change. After all, the breakdown is “irretrievable.” It thus stands to reason that a cause of action under the no-fault statute may be commenced at any time after the marriage has been “broken down irretrievably for a period of at least six months”.

I think that this is the correct result.  Alternatively, a contrary ruling would force a spouse to unwillingly remain in a dead marriage. If the accrual date of a no-fault cause of action were to be determined to arise only on the day that the relationship initially became irretrievably broken, assuming that an exact date could even be identified, the only couples who could get divorced under the no-fault statute would be those whose relationships irretrievably broke down within the past five years but not within the last six months. Couples whose relationships irretrievably broke down more than five years ago would have to remain married.  Clearly, the New York Legislature did not intend such result in passing the no-fault statute.

Same Sex Marriage Bill Passes in New York

On June 24, 2011, New York Senate voted, 33-29, to give final approval to a bill, A-08354, that recognizes same sex marriage in New York. Govenor Andrew M. Cuomo immediately signed the bill which will become effective in 30 days.

The bill, codified as the Marriage Equality Act amends the Domestic Relations Law to provide:

• A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex

• No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex or a different sex

• All relevant gender-specific language set forth in or referenced by New York law shall be construed in a gender-neutral manner

• No application for a marriage license shall be denied on · the ground that the parties are of the same or a different sex

Under the bill, the rights under same-sex marriage will include:

• Employer-sponsored health insurance.

• Equitable property distribution, maintenance, custody and visitation if the couple divorces.

• A presumption that a child in a dissolved marriage is the child of both parents.

• Statutory inheritance rights.

• The right to bring a claim for the wrongful death of a spouse.

• The right to seek Workers’ Compensation death benefits.

• The spousal privilege in legal proceedings.

Can a Child Bring Petition Seeking Modification of Custody?

While the vast majority of cases petitions seeking to modify custody are brought by parents, can any one else bring a petition seeking to modify custody? I have written previously about petitions brought by non-parents, such as grandparents or someone who has a relationship with a child. A recent decision brought forth yet another party who can bring a petition seeking to modify custody – a child himself. In a recent decision, Trosset v. Susan A., 2011 N.Y. Slip. Op. 21151 (Fam Ct. Otsego Co. 2011), the court held that a child had standing to bring a petition seeking modification of present custodial arrangement. In Trossett, the child’s attorney filed a petition to modify prior court order. Respondent moved to dismiss the petition arguing that child’s attorney lacks standing to file petition concerning custody on behalf of child. The court held that  “[w]hile absence of specific authority regarding custody and visitation is problematic, absence of statute granting child standing, such standing depends upon whether party has alleged facts showing disadvantage to himself or herself.” (citations omitted).  According to the decision, the attorney for child made allegations that directly relate to child’s desire to live with father. The court opined that the child has stake in outcome sufficient to confer standing upon him to file petition, or by child’s attorney on child’s behalf.

The decision does not provide much in a way of facts or legal authority for the court’s decision, however, I would guess that the child was older and, therefore, would have an opportunity to have input on any custody decisions. In addition, I would think that the parties were involved in court proceedings previously since the child had an attorney representing him.

Since the decision dealt with procedural issues related arising out of petition being filed by attorney for the child, we may never know how the case was resolved. However, I suspect that this issue may be appealed in the future and we may learn of further developments in the case.

Another Update On No-Fault Divorce In New York

I have previously written about the slow progress of no-fault divorce legislation though New York’s Senate and Assembly here and here. Finally, it appears that New York is on the cusp of passing no-fault divorce law and joining the rest of the country.

On July 1, 2010, the Assembly passed no-fault divorce bill, which previously was approved in the Senate. If signed by Gov. David Paterson, New York would no longer be the only state that doesn’t allow no-fault divorce.

Under no-fault divorce, couples would be allowed to divorce after six months and the resolution of all financial issues. They would not have to prove fault, such as abandonment or adultery, or develop a separation agreement and live apart for at least a year in order to get divorced. Proponents said the changes would save time and money and court resources.

The Assembly and Senate previously approved two other bills related to no-fault divorce. One would require counsel fees to be awarded at the beginning of a divorce process and the other would address issues related to spousal support. The measure dealing with spousal support would establish temporary spousal maintenance while the divorce proceeding is pending, revise factors for final maintenance awards and require the Law Revision Commission to study the economic consequences of divorce and maintenance actions.

While the elimination of marital fault is extremely important and would greatly benefit people seeking divorce here in Rochester and elsewhere in New York State, it is the bill dealing with temporary spousal support that is likely to present some significant legal issues if it becomes law.

The bill is interesting since unlike the existing law regarding temporary spousal support, it utilizes a formula to calculate a temporary spousal support award. The amount of spousal support and its duration are calculated on the basis of a formula as follows:

3 5-A. TEMPORARY MAINTENANCE AWARDS. A. EXCEPT WHERE THE PARTIES HAVE
4 ENTERED INTO AN AGREEMENT PURSUANT TO SUBDIVISION THREE OF THIS PART
5 PROVIDING FOR MAINTENANCE, IN ANY MATRIMONIAL ACTION THE COURT SHALL
6 MAKE ITS AWARD FOR TEMPORARY MAINTENANCE PURSUANT TO THE PROVISIONS OF
7 THIS SUBDIVISION.
8 B. FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL
9 BE USED:
10 (1) “PAYOR” SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
11 (2) “PAYEE” SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
12 (3) “LENGTH OF MARRIAGE” SHALL MEAN THE PERIOD FROM THE DATE OF
13 MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
14 (4) “INCOME” SHALL MEAN:
15 (A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
16 IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
17 THIRTEEN OF THE FAMILY COURT ACT; AND
18 (B) INCOME FROM INCOME PRODUCING PROPERTY TO BE DISTRIBUTED PURSUANT
19 TO SUBDIVISION FIVE OF THIS PART.
20 (5) “INCOME CAP” SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED THOUSAND
21 DOLLARS OF THE PAYOR’S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
22 ARY THIRTY-FIRST, TWO THOUSAND TWELVE AND EVERY TWO YEARS THEREAFTER,
23 THE PAYOR’S ANNUAL INCOME AMOUNT SHALL INCREASE BY THE PRODUCT OF THE

EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17166-10-0
A. 10984–B 2

1 AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL
2 URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF
3 LABOR BUREAU OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE
4 NEAREST ONE THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL
5 DETERMINE AND PUBLISH THE INCOME CAP.
6 (6) “GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE” SHALL MEAN THE SUM
7 DERIVED BY THE APPLICATION OF PARAGRAPH C OF THIS SUBDIVISION.
8 (7) “GUIDELINE DURATION” SHALL MEAN THE DURATIONAL PERIOD DETERMINED
9 BY THE APPLICATION OF PARAGRAPH D OF THIS SUBDIVISION.
10 (8) “PRESUMPTIVE AWARD” SHALL MEAN THE GUIDELINE AMOUNT OF THE TEMPO-
11 RARY MAINTENANCE AWARD FOR THE GUIDELINE DURATION PRIOR TO THE COURT’S
12 APPLICATION OF ANY ADJUSTMENT FACTORS AS PROVIDED IN SUBPARAGRAPH ONE OF
13 PARAGRAPH E OF THIS SUBDIVISION.
14 (9) “SELF-SUPPORT RESERVE” SHALL MEAN THE SELF-SUPPORT RESERVE AS
15 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
16 HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
17 FAMILY COURT ACT.
C. THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
19 NANCE IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH AFTER DETER-
20 MINING THE INCOME OF THE PARTIES:
21 (1) WHERE THE PAYOR’S INCOME IS UP TO AND INCLUDING THE INCOME CAP:
22 (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE INCOME OF THE PAYEE
23 FROM THIRTY PERCENT OF THE INCOME UP TO THE INCOME CAP OF THE PAYOR.
24 (B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR’S INCOME UP TO
25 AND INCLUDING THE INCOME CAP AND ALL OF THE PAYEE’S INCOME BY FORTY
26 PERCENT.
27 (C) THE COURT SHALL SUBTRACT THE INCOME OF THE PAYEE FROM THE AMOUNT
28 DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
29 (D) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE LOWER
30 OF THE AMOUNTS DETERMINED BY CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH;
31 IF THE AMOUNT DETERMINED BY CLAUSE (C) OF THIS SUBPARAGRAPH IS LESS THAN
32 OR EQUAL TO ZERO, THE GUIDELINE AMOUNT SHALL BE ZERO DOLLARS.
33 (2) WHERE THE INCOME OF THE PAYOR EXCEEDS THE INCOME CAP:
34 (A) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAIN-
35 TENANCE FOR THAT PORTION OF THE PAYOR’S INCOME THAT IS UP TO AND INCLUD-
36 ING THE INCOME CAP ACCORDING TO SUBPARAGRAPH ONE OF THIS PARAGRAPH, AND,
37 FOR THE PAYOR’S INCOME IN EXCESS OF THE INCOME CAP, THE COURT SHALL
38 DETERMINE ANY ADDITIONAL GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE
39 THROUGH CONSIDERATION OF THE FOLLOWING FACTORS:
40 (I) THE LENGTH OF THE MARRIAGE;
41 (II) THE SUBSTANTIAL DIFFERENCES IN THE INCOMES OF THE PARTIES;
42 (III) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
43 MARRIAGE;
44 (IV) THE AGE AND HEALTH OF THE PARTIES;
45 (V) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES;
46 (VI) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
47 (VII) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
48 (VIII) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMO-
49 NIAL ACTION WITHOUT FAIR CONSIDERATION;
50 (IX) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
51 PRE-DIVORCE SEPARATE HOUSEHOLD;
52 (X) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
53 TO INHIBIT A PARTY’S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
54 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
55 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
56 SERVICES LAW;

In some respects, having a formula creates some predictability with respect to temporary spousal support awards that has been missing in the present law. At the same time, the blind application of the formula is likely to cause a different set of problems. If the bill passes, how these provisions are going to be interpreted by the courts is somewhat uncertain. As far as the divorce lawyers are concerned, this is likely to force divorce lawyers to spend even more time counseling clients with respect to temporary spousal support and post-divorce spousal support issues.

Update on Dissolution of Out-of-State Civil Unions

I have previously written regarding the problem posed by out-of-state civil unions.  Under New York law, while such unions are recognized through the principles of comity, New York does not have any legislation that addresses how these unions may be dissolved once one or both of the parties reside in New York.

The prior decision, made by the trial court, stated that the court would have jurisdiction to address dissolution of the civil union.  However, the court was searching for the way to accomplish this and suggested that the complaint be pled to seek dissolution of a civil union, as opposed to a divorce, as a complaint was plead initially.  As a trial court decision, B.S. v. F.B., did not carry a significant weight of authority and would not be binding on other trial courts.

Now we have the first appellate level decision to address this issue.  In Dickerson v. Thompson, 2010 N.Y. Slip. Op. 02052 (3rd Dept. 2010), the Appellate Division, Third Department, held that New York court have subject matter jurisdiction “to entertain an action for equitable and declaratory relief seeking dissolution of a civil union validly entered into outside of this state.”  The court did not determine the scope of the relief that may be available in such action.

What is obvious from the decision is that the Appellate Division believed that the courts had authority to handle such cases, but was struggling come up with the way to accomplish the dissolution.  What makes it difficult, is the fact that when a divorce takes place, the court will address such issues as custody, child support, spousal maintenance, and equitable distribution.  All of the above issues are resolved in accordance with the provisions of the Domestic Relations Law.  What is unknown is how the courts will handle custody, child support, spousal maintenance and equitable distribution in dissolution of a civil union, something that apparently carries less weight in New York courts than a traditional marriage.  Does entering into a civil union create a potential entitlement to a spousal maintenance?  I don’t know the answer to that question, I suspect that the courts do not know the answer to it either.  It is quite likely that New York legislature will have to address these issues and, until then, the courts will try to come up with some ways of addressing these issues.

For a divorce lawyer, the above represents an excellent example of uncertainty created by the lack of uniformity in the states’ treatment of same-sex relationships. It also brings up a host of interesting legal issues that attorneys must recognize in handling similar situations.

Divorce, Separation and Selection of Tax Status for Filing

I have previously discussed some of the tax issues related to divorce, maintenance and dependency exemptions.  As the tax season approaches, here is some additional information that may be of assistance.

In a typical divorce, unless the parties have been legally separated prior to December 31, they are still able file a joint return.   By filing a joint return, both spouses will be jointly and separately liable for any errors, omissions or deficiencies on the tax return.   If the parties are going through divorce, the issues related to division of any tax refunds may also become complicated.

If you are legally separated from your spouse, you are able to file as a head of household if you provided more than half the cost of keeping up a home for a child, dependent parent, or other qualifying relative for more than half the year.  According to the IRS, to claim head of household, you must either be unmarried or considered unmarried on the last day of the year.  In addition, the Abandoned Spouse rule may be applicable.   In order to qualify under the rule, if you and your spouse lived apart for the last six months of the year, you would be considered unmarried for the purpose of this filing status under the Abandoned Spouse rule.  If you meet the other two requirements for this status, you would be eligible to file as Head of Household.  The other two requirements are as follows:  1) paying more than half of the cost of keeping up a home as of the last day of the tax year;  2) a dependent child or other relative lived with you for more than half the year or you have a dependent parent (dependent parents are not required to live with you).

A party is required to file as single if he or she was unmarried as of December 31, or if legally separated as of the end of the year and does not qualify for another filing status.

There are other tax advantages and disadvantages that depend on the filing status elected by the party.  Please note that the above discussion is not tax advice, and these issues should be discussed with your tax professional.

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.