Monday, June 6, 2016
CHILD SUPPORT - CONSTRUCTIVE EMANCIPATION
MATTER OF BRINSKELLE v. Widman, 2016 NY Slip Op 1840 - NY: Appellate Div., 2nd Dept. 2016:
"Under the doctrine of constructive emancipation, where "a minor of employable age and in full possession of [his or] 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, [he or] she forfeits [his or] her right to demand support" (Matter of Roe v Doe, 29 NY2d 188, 192; see Matter of Barlow v Barlow, 112 AD3d 817, 818). However, "where 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" (Matter of Alice C. v Bernard G.C., 193 AD2d 97, 109; see Matter of Barlow v Barlow, 112 AD3d at 818; Matter of Glen L.S. v Deborah A.S., 89 AD3d 856, 857). The burden of proof is on the party asserting emancipation (see Matter of French v Gordon, 103 AD3d 722; Matter of Gold v Fisher, 59 AD3d at 444).
Here, even accepting the father's testimony that the parties' daughter, who was 14 years old at the time of the hearing, had voluntarily and without cause rejected his efforts to maintain a relationship with her in an attempt to avoid his parental control, the daughter was not "of employable age," and thus, the father, as a matter of law, could not establish the daughter's constructive emancipation (see Matter of McCarthy v McCarthy, 129 AD3d 970, 971; Matter of Dobies v Brefka, 83 AD3d 1148, 1152-1153; Foster v Daigle, 25 AD3d 1002, 1004; see also Rodman v Friedman, 112 AD3d 537, 538)."