NY CHILD SUPPORT - PENDENTE LITE PAYMENTS SUSPENDED DUE TO FAMILY ESTRANGEMENT ISSUES

Rosenfeld v. Rosenfeld, 2026 NY Slip Op 4048 - NY: Appellate Div., 1st Dept. 2026:

"Defendant appeals from an order of the Supreme Court, New York County (Douglas E. Hoffman, J.), entered on or about June 28, 2024, which to the extent appealed from as limited by the briefs, denied defendant mother's motion for pendente lite child support in the amount of $25,000/month plus a $10,000/month travel allowance.

Since at least 1971, the Court of Appeals and this Court have approved orders suspending child support in appropriate but rare cases. The doctrine permitting suspension of a child support obligation based on constructive emancipation (see Matter of Roe v. Doe, 29 NY2d 188, 192-193 [1971]) or unjustifiable interference with visitation rights (see Feuer v. Feuer, 50 AD2d 772, 773 [1st Dept 1975]; Callender v. Callender, 37 AD2d 360, 362 [1st Dept 1971]) developed through case law. The development of that doctrine pre-dates the enactment of Domestic Relations Law § 241 in 1978 (L 1978, ch 232), which permits suspension of maintenance based on visitation interference. In doing so, Domestic Relations Law § 241 codified a principle as to maintenance that had already been developed in case law with regard to child support.^[1]

A parent has a legal duty to support their child until the child is 21, regardless of the existence of a child support order (Domestic Relations Law § 240[1-b][b][2]; Family Ct Act § 413[1][a]; see also Roe, 29 NY2d at 192-193 ["It has always been, and remains a matter of fundamental policy within this State, that a (parent) of a minor child is chargeable with the discipline and support of that child"]). Even after the enactment of Domestic Relations Law § 241, courts have determined whether to suspend a parent's child support obligation based solely on judge-made law (see Usack v. Usack, 17 AD3d 736 [3d Dept 2005]; Matter of Smith v. Bombard, 294 AD2d 673 [2d Dept 2002], lv denied 98 NY2d 609 [2002]).

In this case, in an order dated December 27, 2021, issued more than two years before the order on appeal, Supreme Court decided custody and the mother's motion for pendente lite support. Based on clear and convincing evidence presented at the 35-day custody trial, the court determined that the mother had deliberately and actively alienated the child from the father in "one of the most clear-cut and disturbing examples of parental alienation that this court has observed through thousands of custody cases over many years." Accordingly, the court reasonably determined that this is one of the unfortunate and rare situations where suspension of the noncustodial parent's child support obligation was warranted. Specifically, the court decided the pendente lite motion by directing the father to pay 90% of the child's unreimbursed medical and mental health expenses and otherwise suspended the father's child support obligation until the child's visitation with the father was "meaningfully resumed" or "there is otherwise good cause to resume the support" (see Rodman v. Friedman, 112 AD3d 537, 537 [1st Dept 2013]).

The custody order contained detailed provisions intended to assist the parties in repairing the relationship between the father and child as a component of the parenting time plan, including requiring the mother to work with a parenting coach through December 2023, attend family therapy, and complete intake with the Building Family Resilience program. The court's pendente lite order was also based on the father's statement that he loves the child and would "continue to pay for 100% of her private school expenses, multiple extra-curricular activities, day camps and medical care without interruption . . . ., with or without a court order," and the mother's concession that he had done so. In reaching its decision, the court also considered that the mother has considerable assets of her own, including both separate property and equitable distribution received pursuant to the parties' prenuptial agreement. Critically, the mother did not appeal from the 2021 order.

The order now appealed from denied the mother's subsequent motion for an award of pendente lite child support based on her claim that she had complied with the 2021 order and that the father now had meaningful parenting time with the child. The motion court noted that this was essentially a motion to modify the earlier pendente lite award. However, the mother failed to present any facts establishing either good cause or that visitation had meaningfully resumed, as required by the prior order, from which she never appealed. Nor did she demonstrate exigent circumstances requiring modification of the earlier pendente lite award (see Anonymous v. Anonymous, 167 AD3d 527, 527 [1st Dept 2018]).^[2]

Indeed, the mother's submissions either admitted or did not deny the following assertions in the father's affidavit: (1) as of June 22, 2023, the mother still had not bothered to read the court's December 27, 2021 order, which set out specific directives for the mother to follow to help repair the relationship between the father and the parties' child; (2) in early 2022, she fired the parenting coach, even though the December 27, 2021 order had directed her to work with a parenting coach through December 2023; (3) she continued to deny to the family therapist that she had alienated the child, despite the court's finding that she had and its direction that she participate in family therapy; (4) she canceled the father's parenting time for the child's spring break in 2022; (5) she told the child she could attend a friend's bar mitzvah instead of going on one of two scheduled four-day visits with the father during summer 2022; (6) she took the child to California when the child was scheduled to spend her birthday with the father in April 2023; (7) approximately one month after she made the instant motion, despite the fact that the parties have joint legal custody, she unilaterally extended the child's sleepaway camp stay and canceled the father's summer parenting time; and (8) as of August 2023, the father and child had only one of their scheduled alternate weekend overnight visits since 2022.

Accordingly, we disagree with the dissent that the record does not support a finding that the mother continued to interfere with the father's relationship and parenting time with the child.^[3] Indeed, some of the mother's actions directly violated the 2021 order. Therefore, the court appropriately exercised its discretion in determining that the record before it did not demonstrate that visitation between the child and the father had "meaningfully resumed."

As the motion court found, the child's reasonable and appropriate needs are being met (see Whitaker v. Case, 122 AD3d 1015, 1020 [3d Dept 2014] [suspension of child support appropriate, pending custodial parent's demonstration of good faith effort to assist in therapeutic process needed to reunite noncustodial parent with children, where there was no evidence of risk to the children becoming public charges]; Usack, 17 AD3d at 739-740 [same]). It is undisputed that the mother and child continue to reside in a 1,500 square foot luxury apartment with views of Central Park and that the father continues to pay all of the child's expenses for private school, extracurricular activities and tutoring, in addition to 90% of her unreimbursed medical and mental health expenses.

The dissent relies primarily on Domestic Relations Law § 241. However, neither the order now on appeal, nor the 2021 decision suspending the father's obligation to pay child support because the mother had "unequivocally been alienating the child" relies on, or even mentions, Domestic Relations Law § 241.^[4]

Finally, the best remedy for a perceived inequity in a pendente lite award is a speedy trial. Accordingly, we need not modify a pendente lite award where, as here, the party seeking modification has not shown exigent circumstances (Anonymous, 167 AD3d at 527).

Under these circumstances, Supreme Court did not improvidently exercise its discretion in determining that the mother's efforts to comply with the terms of the 2021 order did not result in the child having regular visitation with the father as set forth in that order, and that there was not otherwise good cause to modify the 2021 order as to pendente lite child support.

Accordingly, the order of the Supreme Court, New York County (Douglas E. Hoffman, J.), entered on or about June 28, 2024, which to the extent appealed from as limited by the briefs, denied defendant mother's motion for pendente lite child support in the amount of $25,000/month plus a $10,000/month travel allowance, should be affirmed, without costs.

All concur except Michael, J. who dissents in an opinion.

MICHAEL, J. (Dissenting).

The court failed to provide a sufficient basis to deny defendant mother's request for pendente lite child support and therefore, I respectfully dissent. The court did not make the requisite finding pursuant to Domestic Relations Law § 241 and relevant case law that the mother has continued to deliberately frustrate or actively interfere with plaintiff father's visitation rights to support denial of the mother's motion for temporary child support or to consider whether there is otherwise good cause to grant support. Accordingly, I would reverse and remand for further proceedings as discussed below.

I.

Domestic Relations Law § 241 provides in pertinent part:

When it appears to the satisfaction of the court that a custodial parent receiving alimony or maintenance pursuant to an order. . . has wrongfully interfered with or withheld visitation rights provided by such order . . . the court, in its discretion, may suspend such payments or cancel any arrears that may have accrued during the time that visitation rights have been or are being interfered with or withheld.^[5]

The statute expressly permits the court to suspend maintenance payments without reference to suspension of child support payments, and for good reason. Suspension of spousal maintenance as opposed to child support penalizes the parent while avoiding potentially harming the child for the parent's misconduct (see Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Family Court Act § 413 ["Suspension (of child support) harms the guilty parent and may or may not induce her to ameliorate the alienation, but unfortunately also harms her innocent children"]; Usack v. Usack, 17 AD3d 736, 739 [3d Dept 2005] [referring to alteration of child support obligations due to visitation interference as an "imperfect remedy"]).

Yet whether the Legislature intentionally omitted child support from the statute is unclear. The statute's legislative history provides no insight on this issue (see Hudson v. Hudson, 97 Misc 2d 558, 561 [Sup Ct, NY County 1978] ["Insofar as extrinsic aids to interpretation (of Domestic Relations Law § 241) are concerned such as a legislative memorandum, the memorandum by the legislative sponsor of the bill and other documents that the court has obtained, the court finds no guidance"]). Nor do the majority's pre-enactment case citations from the 1970's provide clear insight into the Legislature's intent. The statute "may have been intended to codify the existing case law as to both child support and alimony. In fact however the Legislature codified `half a loaf' and it is not clear as to whether it actually intended that the `half a loaf' be alimony" (id.).

In the absence of a clear restriction, it has become accepted practice through precedent and application of the statute, that "a noncustodial parent may affirmatively move the court for an order suspending spousal or child support payments where the custodial parent has wrongfully interfered with visitation" (Alan D. Scheinkman, Prac Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law § 241; see e.g. Matter of Kanya J. v. Christopher K., 175 AD3d 760, 763 [3d Dept 2019] ["a court may suspend child support payments for a period where the custodial parent (has) wrongfully interfered with or withheld visitation"] [internal quotation marks omitted], citing Domestic Relations Law § 241, lv denied 34 NY3d 906 [2019]; Matter of Luke v. Luke, 90 AD3d 1179, 1182 [3d Dept 2011] [same]; Matter of Lew v. Sobel, 91 AD3d 648, 648 [2d Dept 2012] [father's motion to hold support payments in escrow granted "(i)n light of the father's showing . . . that the mother continued to deliberately interfere with his visitation rights"] [citing Domestic Relations Law § 241]).

To suspend support, the guilty parent's conduct must rise to the level of "deliberate frustration [of] or active interference" with the other parent's visitation rights (see Zinger v. Robertson, 217 AD3d 471, 471 [1st Dept 2023]; Matter of Harry T. v. Lana K., 156 AD3d 511, 512 [1st Dept 2017]; Rodman, 112 AD3d at 537). To that end, the court's discretion to suspend or withhold payments lasts only so long as there remains such wrongful interference (see Domestic Relations Law § 241; Matter of Lew v. Sobel, 46 AD3d 893, 895 [2d Dept 2007]; Gade v. Gade, 99 AD2d 796, 796 [2d Dept 1984]). Accordingly, courts have suspended support "pending further court order upon a showing that the mother has made good faith efforts to actively encourage and restore the father's relationship with the children" (Matter of Dobies v. Brefka, 83 AD3d 1148, 1153 [3d Dept 2011]; see also Whitaker v. Case, 122 AD3d 1015, 1020 [3d Dept 2014] [suspending the wife's child support obligation "pending the husband's demonstration of a good faith effort to assist in the therapeutic process undoubtably needed to reunite the wife with the children"]; Lew, 46 AD3d at 895 [directing the father's child support payments to be held in escrow until "the mother can certify, to the satisfaction of the Supreme Court . . . the absence of her interference with the father's visitation rights"]; Usack, 17 AD3d at 740 [suspending the mother's support obligation "pending further court order upon a showing that (the father) has made good faith efforts to actively encourage and restore (the mother's) relationship with the children"]).

II.

On December 27, 2021, the court denied the mother's request for pendente lite maintenance and child support based upon her financial circumstances and severe alienation. The court also denied the mother's request to order the father to pay the child's add-on expenses, except for unreimbursed medical expenses. Two and a half years later, on June 27, 2024, the court's order on appeal again denied temporary child support to the mother in response to her second child support motion.

In its 2024 decision, the court failed to consider whether the mother continued to severely alienate the child during the intervening 2 ½ year period between the 2021 and 2024 decisions to justify continued denial of support (see Rodman, 112 AD3d at 537 [suspension of child support payments warranted where "alienation has continued unabated and (the mother's) conduct remains unchanged" (internal quotation marks omitted)]; Lew, 91 AD3d at 648 [child support held in escrow because "the mother continued to deliberately interfere with his visitation rights"]). Specifically, the court did not determine whether the mother continued to actively interfere or deliberately frustrate the father's visitation rights, despite evidence presented by the mother that since the 2021 order, she met with a parenting coach multiple times and retained a parenting coach at the time of the court's June 2024 oral decision, participated in a family therapy program, and made efforts to coordinate visitation with the father (though I decline to comment on the sufficiency of this evidence).

On June 10, 2024, the court stated on the record that "even if the mother, even if, I focus on the `if' and it may well be just an `if,' the mother is not alienating the child from the father, but is, in fact, seeking to repair the relationship with the father. . . the reason for [the father-child relationship] still remains the alienating conduct that had occurred by the mother set forth in detail in [t]he Court's decision and order from a few years back." The court further stated that it "has monitored and . . . recognizes, it's certainly my belief without making explicit findings, that both parties have made different efforts toward repairing the relationship between the father and the child." Nevertheless, the court held that given that the father does not have a reasonable relationship with the child based upon the mother's prior conduct, "[it is] not appropriate to order the father to pay any child support of any kind other than voluntarily."

In its written decision dated June 27, 2024, the court reiterated that "even if each parent is making some effort . . . the effect remains not in controversy: the child remains alienated from her father. Whether [the mother] has made minimal or greater than minimal efforts at un-alienating the parties' daughter from [the father] is not the question, as it remains the case (indeed, the law of the case, post-trial) that [the mother] alienated the child from [the father]" (emphasis added). The court noted that the mother was "apparently" somewhat trying but that her "apparent[ ]" actions are too late.

In short, the court treated the mother's motion as "in essence, a reconsideration of the Court's December 27, 2021 Decision After Trial" and based its decision on whether to continue to deny child support on the mother's previous actions and their continued effects. The court not only failed to consider whether the mother continued to actively interfere with visitation but also failed to sufficiently consider its own prior directives in the 2021 order, including its denial of pendente lite child support until "there is otherwise good cause to resume the support."

The majority holds that the record supports a finding that the mother continued to interfere with the father's visitation sufficient to deny the mother's child support motion. The majority even makes factual findings that the mother violated the 2021 order. It is premature for this Court to make those determinations when there has been no hearing on visitation interference since the 2021 order, and when the motion court not only made no such findings^[6] in the order on appeal but specifically expressed an unwillingness to make factual findings. The court stated on the record that it recognized "without making explicit findings . . . both parties have made different efforts toward repairing the relationship between the father and the child." It instead denied support "even if each parent is making some effort," upon the belief that its prior alienation finding was "law of the case" (emphasis added).

Under the plain language of the order, the mother could never obtain pendente lite support since the order binds her during the pendency of the action to the findings of the 2021 order despite any meaningful efforts on her part to repair the relationship between the father and the child. This is an unfortunate reality given that this matter has been pending for years and may continue to span a considerable length of time.

The father emphasizes the court's finding that his relationship with the child may never be repaired. However, if the lingering effects of past alienation, as opposed to the custodial parent's present conduct, are determinative, then the noncustodial parent could gain a financial windfall by not having to pay support despite good faith efforts by the custodial parent to encourage visitation. It would also negate the purpose of the statute by making the custodial parent's efforts postjudgment or order irrelevant.

Finally, the fact that the mother allegedly has access to significant assets and that the child is not in danger of becoming indigent is not dispositive (see Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Family Court Act § 413 ["children may be significantly harmed through the withdrawal of support, even in the absence of indigency sufficiently severe to trigger public assistance eligibility"). The purpose of temporary child support is to not only ensure the child's reasonable needs are met but to maintain the status quo to provide children with a sense of continuity while the action is pending (see Anonymous v. Anonymous, 63 AD3d 493, 498 [1st Dept 2009], appeal dismissed 13 NY3d 921 [2010]; Kaufman v. Kaufman, 131 AD3d 939, 944 [2d Dept 2015]). The mother alleges that the father's net worth has ranged from $68 million to more than $90 million, while it is undisputed that she is a stay-at-home mother receiving financial assistance from her father to care for herself and the child. While the mother and child are by no means destitute, the mother alleges that she relied on the child's father for support during the marriage and without that support, the child's lifestyle while in the mother's care is substantially different than when the parties resided together during the marriage.

The majority notes that the father continues to voluntarily pay for the child's private school expenses which, if true, is certainly commendable, but the mother remains responsible for the child's other myriad necessities, including housing, utilities, school supplies, extracurricular activities, clothing, transportation costs, and other expenses. Certainly, where the mother relied on the father for support during the marriage, there can be no dispute that the denial of child support to the mother pending this litigation contravenes the status quo.

III.

In sum, I disagree with the majority's finding that Supreme Court providently exercised its discretion in denying support upon determining that the mother's efforts failed to result in regular visitation between the father and child. Under the circumstances of this case, including the passage of time since the 2021 order, the substantial disparity in the parties' financial circumstances, and the evidence in the record that the mother has made efforts to comply with the court's 2021 directives and to repair the father-child relationship, the court did not make sufficient findings to continue to deny support. The court should have considered, among other things, whether the mother is presently frustrating or actively interfering with the father's visitation rights to continue its order of suspension, and it failed to do so.

The majority is correct that speedy trials can remedy a perceived inequity in a pendente lite award. However, in the absence of a speedy trial — a common occurrence in matrimonial actions, as this years-long case demonstrates — the best remedy for inequity is the equitable application of the appropriate legal analysis. Accordingly, I would reverse and remand for a determination and consideration of an appropriate award of pendente lite child support if the court finds the high bar under Domestic Relations Law § 241 and applicable case law (see Cervera v. Bressler, 90 AD3d 803, 807 [2d Dept 2011], lv denied 19 NY3d 809 [2012]) has not been met, or upon good cause shown in accordance with the court's 2021 order.

Order, Supreme Court, New York County (Douglas E. Hoffman, J.), entered on or about June 28, 2024, which to the extent appealed from as limited by the briefs, denied defendant mother's motion for pendente lite child support in the amount of $25,000/month plus a $10,000/month travel allowance, affirmed.

All concur except Michael, J. who dissents in an opinion.

[1] In 1986, Domestic Relations Law § 241 was amended in connection with the enactment of the New York State Support Enforcement Act of 1986 (L 1986, ch 892) to clarify that "interference with visitation rights is not a ground for the cancellation of child support arrears. . . although such interference may provide a basis for the prospective suspension of child support" (Doyle v. Doyle, 198 AD2d 256, 257 [2d Dept 1993]; see also Ledgin v. Ledgin, 36 AD3d 669, 670 [2d Dept 2007]). This amendment is consistent with the prohibition on reduction or cancellation of child support arrears, which is not at issue in this appeal (see Domestic Relations Law § 236[B][9][b]; Family Court Act §§ 451; 460[1]; Matter of Dox v. Tynon, 90 NY2d 166, 170 [1997]).

[2] We disagree with the dissent that the motion court failed to consider whether the mother had complied with the 2021 order, whether she continued to actively alienate the child from the father, and whether she demonstrated good cause to modify the 2021 order's pendente lite child support determination. The motion court found that the child remained alienated from her father; that the mother had made either "minimal" or "greater than minimal" efforts that were insufficient to remedy the harm she had caused; that the child's reasonable and appropriate needs are being met; and that there was "no factual or legal basis" on which to grant the mother's motion.

[3] The dissent disapproves of our review of the factual record. However, we are permitted to review both facts and law (CPLR 5501[c]). The mother's failure to deny the father's assertions about her failure to comply with the 2021 order, despite the opportunity to do so, are properly deemed admissions (see Matter of Miguel S., 140 AD2d 202, 204 [1st Dept 1988]). Moreover, to the extent that the dissent relies on the motion court's decision to deny the father's cross-motion for contempt, that cross-motion is not included in the record. That the court granted the cross-motion solely to the extent of directing that the parties ensure that the child does not leave her cell phone at the mother's home and that the mother is not to communicate with the child during the father's parenting time except in emergency does not constitute a finding that the mother complied with all of the directives in the 2021 order.

[4] Nor does this Court's citation to Domestic Relations Law § 241 in Rodman (112 AD3d at 537) support the dissent's assertion that the statute is applicable to this case beyond its prohibition on cancellation of child support arrears. Indeed, the citation to the statute in Rodman is preceded by a citation to Ledgin (36 AD3d at 670), which held that interference with visitation "is not a ground for the cancellation of child support arrears." Similarly, each of the other, noncontrolling cases cited by the dissent expressly cites Domestic Relations Law § 241 for the proposition that child support may be suspended only prospectively (Matter of Kanya J. v. Christopher K., 175 AD3d 760, 763 [3d Dept 2019] ["the suspension must be prospective"]; Matter of Lew v. Sobel, 46 AD3d 893, 895 [2d Dept 2007][frustration of visitation "can warrant the suspension of future child support"]).

[5] The majority notes that neither relevant Supreme Court order in this case explicitly referenced nor relied on Domestic Relations Law § 241, but as discussed below, the court based the order on appeal upon its prior 2021 decision, which relied upon case law applying Domestic Relations Law § 241 (see e.g. Rodman v. Friedman, 112 AD3d 537, 537 [1st Dept 2013]). In any event, the absence of an explicit reference to the relevant Domestic Relations Law statute does not negate its direct application to the circumstances here nor limit our consideration of the statute and the parties' related arguments on appeal (see Nuevo El Barrio RehabilitaciOacute;n de Vivienda y EconomÍa, Inc. v. Moreight Realty Corp., 87 AD3d 465, 466 [1st Dept 2011]).

[6] To the contrary, the court's June 2024 oral and written decisions denied the father's application to hold the mother in contempt."

NEW YORK CHILD CUSTODY - ONE PARENTS ABUSIVE BEHAVIOR

MATTER OF KE v. AE, 2025 NY Slip Op 51557 - Kins Co. Family Court 2025:

"

Procedural History

On March 31, 2023, K.E. filed a petition for custody of his son, L.E. On that same day, A.E. filed a family offense petition against Mr. E., alleging that he had committed several crimes against her. On or about May 24, 2023, Ms. E. filed a cross-custody petition regarding L. On March 15, 2024, the family offense matter resolved on consent with a one-year Order of Protection which forbid Mr. E. from communicating with Ms. E. except through the Our Family Wizard platform with regard to parenting time and the wellbeing of the child. The trial of these cross-custody petitions also commenced on March 15, 2024, with further testimony being heard on August 19, 2024, August 21, 2024, September 23, 2024, December 20, 2024, February 14, 2025, February 19, 2025, April 28, 2025, and July 3, 2025. Written summations were due to the Court by August 22, 2025.

Findings of Fact

Mr. E. met Ms. E. on March 28, 2017. Soon after, they developed a relationship. They began living together in September 2017 and were married in August 2019. The couple initially lived together in New Jersey but moved to Brooklyn in October 2020. Their son L. was born on in 2022. Mr. E. was actively involved in prenatal appointments and was present when L. was born. After L. was born, both parents continued to care for him, though Ms. E. was home on parental leave and did the bulk of childcare.

In early 2022, due to the ongoing war, the couple decided to have Ms. E.'s mother and brother move from Ukraine to live with them in Brooklyn in a two-bedroom apartment. While Ms. E.'s brother moved out after a few months, Ms. E.'s mother continued to reside with the couple and L. After Ms. E.'s mother moved in, she took over some childcare duties including attending well visits with Ms. E. and L.

Ms. E. testified that she went back to work when L. was about 5 months old to support the family financially, including to maintain the family's health insurance. Ms. E.'s mother cared for L. when Ms. E. was working. Ms. E. testified as to the small details of her care of L. including trimming his nails, dancing, playing with Play-Doh, etc. These details support the Court finding Ms. E.'s testimony credible that when she returned from work, she provided the bulk of the childcare. However, the Court does credit Mr. E.'s testimony that he also was involved in caring for L. when he was not working.

Mr. E. repeatedly raised issues that he appeared to believe reflected negatively on Ms. E.'s inherent character and suitability as a parent. He testified that the parties met at a go-go bar that he frequented^[1] near his home shortly after Ms. E. began working there. At the time of their marriage, Mr. E. believed Ms. E. had overstayed on a student visa, though Ms. E. submitted documentation indicating that she did have a valid visa at the time they were married and testified that she obtained a green card during the marriage. Mr. E. was critical of Ms. E.'s decision to take the subway with L. the day after a shooting on a subway. While the Court does understand why this caused Mr. E. concern, there is no basis to believe that Ms. E.'s decision to take the subway that day was reckless or inappropriate. Finally, Mr. E. believed that Ms. E. had accidentally locked L. alone in the apartment while having a drink with a neighbor. Ms. E. strongly disputed Mr. E.'s accusations. She testified that she had opened to door to give a package to her neighbor and, when the door shut and locked behind her, she immediately had another neighbor enter her apartment through the shared fire escape to then open her door, which only took a few minutes. Ms. E. is the only person who testified who had direct knowledge of this incident and she appeared candid and forthcoming while doing so. Having had the unique opportunity to observe the demeanor and testimony and assess credibility, the Court credits her testimony.

In contrast, the Court finds Mr. E.'s testimony significant for demonstrating how negatively he views Ms. E. and his desire to overstate safety and parental fitness concerns about her. Notably, his criticisms of Ms. E. were at times plainly hypocritical, including condemning her for working at a bar that he admitted that he regularly patronized himself, and for attacking her for living in a "dilapidated, terrible place"^[2] when he had lived in effectively the "same building, same environment, same everything"^[3] that was only "50 feet away"^[4] prior to the couple breaking up. Mr. E. also seemed to suggest that Ms. E. was effectively engaging in a fraudulent relationship with him motivated by her seeking immigration status. However, the Court does not find this convincing as Mr. E. was aware of Ms. E.'s immigration status, the couple were together for years, chose to get married, chose to have a child together, and Ms. E. provided compelling evidence that her eventual decision to leave was due to the hostile environment Mr. E. played a significant role in creating.

In March of 2023, Mr. E. left New York for a five-day business trip. Mr. E. believed that Ms. E. had initially planned to join him on the trip, but shortly before their planned departure she said she had to stay behind to cover a work emergency. On the day he returned and after his plane had landed, Ms. E. texted him that she had taken L. and moved out of the apartment but had fed and walked the dog before she left. Mr. E. responded with a series of vitriolic texts, including "I pray that you die a slow horribly painful death. Like brain cancer you fucking cunt."^[5] Mr. E. indicated that he was frantic and desperate to find L. He immediately called the police who arrived at the home before he did. He was then delayed in entering the apartment because he lost his keys but when he did, he believed the dog was "hungry [and] frail."^[6]

Mr. E. eventually reviewed camera footage from the apartment building and became convinced that Ms. E. was assisted in moving out by the son of her attorney, Mr. Gorodetsky. Ms. E. testified that the person who assisted was someone she had hired and had no connection to her attorney. Nonetheless, Mr. E. repeated the narrative he'd created and returned to the issue several times during his testimony, albeit at time raised by counsel for Ms. E. The Court credits Ms. E.'s testimony as, like with the incident of the apartment door locking with L. inside, Ms. E. is the only person with firsthand knowledge who testified and she presented as credible during her testimony. However, the Court attaches no importance as to who assisted Ms. E. in moving, other than to note Mr. E.'s outrage and fixation on his theory.

Ms. E. testified that she knew Mr. E. would be angry when she and L. left and that she deliberately left before he returned because he was often angry and verbally abusive to her. She explained that she filed for an Order of Protection against him because she "was experiencing constant pressure, threats, disrespect, humiliation."^[7] She conceded that he had never physically harmed her, but testified that he frequently disparaged her, such as calling her a "whore" in front of L.^[8] and threatened to inflict physical harm on her.^[9] The text messages that he sent to her when he learned she had left, such as specifying that he hopes she dies a slow and painful death like from brain cancer, only bolster her testimony as to the way he would treat her before she left. Ms. E.'s mother, T.U., also testified to observing the couple argue frequently, and that during arguments, Mr. E. would use abusive language towards Ms. E., such calling her "a prostitute, a bitch, a whore [and that] she was stupid,"^[10] including saying these things when L. was present.^[11]

Even text messages that were offered by counsel for Mr. E. and admitted into evidence support Ms. E.'s testimony about his deep, intense anger and derision of her, including statements that "this is an apology for what I will be doing. I will spend every day of my life working to not only win my son back, but also [Ms. E.] will reap the consequences in court, and she will lose everything"^[12] and "I swear on L.'s life, that until either I or her die, that I will do all there is to be done to show the world her true devil self."^[13] The court also notes that Mr. E. is significantly larger than Ms. E. Given his intense anger, his continuous disparagement of her, the size difference between the two, and his attempts to hold immigration issues over her head^[14], the Court finds it both reasonable and credible that Ms. E. felt intimated by and afraid of Mr. E.

In the weeks that followed Ms. E.'s move with L., Mr. E. was urgently seeking contact with L. and he continued to reach out to Ms. E. multiple times a day until he was served with an order of protection. He received a temporary order of visitation about 15 days after Ms. E. left with L. Mr. E. testified that Ms. E. cancels his parenting time inappropriately and that he spends $60-70 in tolls plus gas to exercise his parenting time now that Mr. E. moved to New Jersey.

Mr. E. also expressed concern that Ms. E. was not meeting L.'s educational needs. He testified that he had brought up concerns regarding L.'s speech for months before Ms. E. agreed to obtain services, and that once she did, she obtained services from a Russian speaking provider. Mr. E. objected to L. obtaining services from a Russian speaking provider as Mr. E. does not speak Russian and wants to be able to communicate with L. Ms. E. conceded that at the time Mr. E. first raised issues about L.'s delays, she did not believe L. was significantly delayed and did not take steps to get an evaluation. However, as L. grew older, she saw reasons to be concerned and did arrange an evaluation and services. She believes, based on emails she received from a service provider that allegedly included forwarded communication between Mr. E. and the provider, that Mr. E. thwarted her efforts to obtain services by threatening providers who speak Russian. For this reason, she has consented to L. receiving some of his services in New Jersey. It is clear from both parties' testimony that they cannot make decisions together. Ms. E. presented evidence of providing Mr. E. with medical information and documents^[15], yet he still complained and criticized the medical treatment. The evidence and testimony demonstrated that any attempt to discuss the substance of an educational or medical decision with Mr. E. would devolve from a discussion of the issue at hand into a diatribe by Mr. E. about how horrible of a person and mother Ms. E. is.

Legal Analysis

In summations submitted by counsel, each parent respectively contends that they should be awarded sole legal custody. Ms. E. contends that she should also be awarded primary physical custody, while Mr. E. contends that the parties should be both awarded joint physical custody with a 50/50 split of parenting time on a 5-5-2-2 type schedule. On summation, for the first time, Mr. E. also reports that "regardless of how this Court determines legal custody, [he] shall return to reside in Brooklyn, within a short distance of [Ms. E.'s] residence."^[16] However, it is notable that there was no testimony at trial whatsoever by Mr. E. about his intent to relocate to Brooklyn. Instead, he testified at length about what he believed where the advantages of his residence in New Jersey, which makes the Court unable to consider his newly stated intend to relocate to Brooklyn a reliable plan.

The decision to grant initial custody of a child must be based upon the best interests of the child standard. See, Friederwitzer v. Friederwitzer, 55 NY2D 89 (1982); Eschbach v. Eschbach, 56 NY2d 167 (1982). Ms. E.'s history as the primary caretaker for L., her more stable demeanor, and her credible assertion that she will comply with orders for her son to have parenting time with her father, all weigh in favor of an award of custody to Ms. E. being in L.'s best interest.

Mr. E. testified that he believes that he is the parent better able to provide for L., that he has a nicer home environment (in New Jersey), and that he would be more supportive of a healthy coparenting relationship.

The Court does not credit Mr. E.'s contention that he is the parent better able to financially support the child. Mr. E. admitted he needed to file for bankruptcy in part due to legal fees. Ms. E. testified that she went back to work because the family was struggling financially and they needed health insurance. The Court does not find that financial stability weighs in either parent's favor. Rather, they both appear to be similarly able to meet L.'s basic needs.

Mr. E. testified that the couples' move to Brooklyn was always meant to be temporary. He testified that he felt that L., by primarily residing with his mother in Brooklyn during the pendency of this matter, was "living in a dilapidated, terrible place."^[17] He went on to testify about the "resort-style living"^[18] that he enjoys in New Jersey, and his intent to enroll L. in a private school operated by his church in East Brunswick. However, Mr. E.'s contentions in this regard were merely conclusory, and they were further undermined by his statements in summation that he newly intends to return to reside in Brooklyn. Further, when determining which environment is more suitable for the child to primarily reside, it is more imperative to consider which environment is more supportive of the child having a healthy relationship with the other parent than it is to consider which environment offers "resort-style living."

The determination of how much parenting time and under what parameters is in the best interests of the child is left to the discretion of the Family Court. See e.g. Larkin v. White, 79 AD3d 751, 751 [2d Dept 2010]; McMillian v. Rizzo, 31 AD3d 555, 555 [2d Dept 2006].

An award of joint custody here is not appropriate. "Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled." Braiman v. Braiman, 44 NY2d 584, 587 [1978]. "Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion." Id. 589-90. These parents have an acrimonious relationship characterized by Mr. E.'s attempts to control and undermine Ms. E., as described below.

The Court further finds it would not be in L.'s best interests to award sole custody to Mr. E. The Court did not find Mr. E. credible in his claims that he is the parent best able to support coparenting. Through his testimony, written exhibits (including the text exchanges he submitted), and his demeanor during the trial, Mr. E. demonstrated that he has intense contempt for Ms. E. that he is unable to look past in the context of his coparenting relationship. Indeed, the text messages admitted as Petitioner's Exhibit 7, messages between Mr. E. and Ms. E.'s mother, demonstrate the depth of his anger. "Your daughter is not only a liar, ex stripper, a cheat and a con artist, she is unfortunately the mother of my child."^[19] "L. will eventually make her pay when he sees her true self."^[20] "I will never teach him to hate her, but he will know every detail of what she did when he is old enough, and he will decide if she is a `mother' or .... [sic]"^[21] "Apparently you think any female is a mother, but a mother is something [Ms. E.] would never understand."^[22] Respondent's Exhibit L also included text messages from Mr. E. telling Ms. E. "you're not his mother. A mother is not someone who gives birth. A Mother is something you can never be."^[23] "I AM HIS ONLY PARENT."^[24] Although these same text messages from Mr. E. accuse Ms. E. of failing to coparent and trying to alienate the child, these messages provide clear additional support for the Court's finding that Mr. E. himself does not support co-parenting with Ms. E. but instead actively discourages it.

L. is currently three years old and undoubtably will only be more and more aware of how his parents talk about and treat one another as he grows older. Mr. E. has given this Court every reason to believe that L. will grow up with an acute awareness of his father's contempt for his mother. The statement that he won't "teach [L.] to hate [his mother]"^[25] but that he will make sure that his son "will know every detail of what she did,"^[26] is but one example of his inability to shield L. from the intensity of his hatred for L.'s mother.

Furthermore, Mr. E.'s admissions of open contempt for Ms. E. such as the example above raises great concern to this Court as it is a hallmark symbol of a parent intending to use coercive control to alienate a child from the other parent. Pursuant to Domestic Relations Law §240, this Court must consider the effects of domestic violence upon the best interest of L. Mr. E.'s attempts to dominate Ms. E. and undermine her as parent are properly considered as domestic violence. "For over 15 years, scholars have understood that domestic violence is not limited to acts of overt physical aggression but rather can exist through the interpersonal relationship dynamics of two adults. One partner may exert coercion over the other, using `force or threats to compel or dispel a particular response.' Evan Stark, Coercive Control: How Men Entrap Women in Personal Life 228 (2007). Independently, a relationship may feature one partner controlling the other, through `structural forms of deprivation, exploitation, and command that compel obedience indirectly.' Id. at 229. Coercion and control can exist together, creating a `condition of unfreedom' also known as entrapment. Id. at 205." Matter of Aisha R., 79 Misc 3d 1106, 1109-10 [Fam Ct 2023].

Mr. E.'s behavior as described by Ms. E. clearly demonstrate a pattern of coercive control. She described him as demeaning, easily enraged, and limiting her ability to get day care and educational services for L. The Court credits this testimony as it comports both with the text messages and Mr. E.'s demeanor in court. During Ms. E.'s testimony, Mr. E. rolled his eyes, scoffed, and appeared incredulous throughout, underscoring his attempts to undermine her. This type of abuse puts Ms. E. at risk even after the termination of her marriage to Mr. E. "Coercive control can have devastating impacts on victims/survivors. In addition to its well-documented effects on physical and mental health, [researchers] highlight that coercive control limits victims'/survivors' space for action, that is their freedom to say and do things and to meet their own needs without worry or fear. As perpetrators microregulate their everyday behaviors, victims'/survivors' options, choices, and ability to decide for themselves diminish. These constraints on their agency and voice often contribute to a profound disempowerment, loss of self, and loss of confidence in victims/survivors." Emma Katz, Beyond the Physical Incident Model: How Children Living with Domestic Violence are Harmed By and Resist Regimes of Coercive Control," 25 Child Abuse Rev. 46, 48 (2016) (citations and internal quotation marks omitted). Ms. E.'s testimony reflects examples of her giving into Mr. E.'s attempts at control. Specifically, she admitted to signing a lease in New Jersey (Petitioner's Exhibit 4) with the father just weeks before she ended the relationship because he was constantly pressuring her to do so.^[27] She also testified to failing to object to the father arranging services for L. in New Jersey after he undermined her efforts to obtain services near her home. Were this Court to give Mr. E. primary custody of L., Ms. E. would be vulnerable to further control as she sought to preserve her relationship to L.

Mr. E.'s behavior not only has a detrimental impact on Ms. E. who is currently L.'s primary caregiver, it also directly places L. at risk. "Research has shown that children are not only witnesses to domestic violence, but actual victims who experience the same dynamics in the home." Aisha R. at 1113 (citing Katz, supra at 52). Children exposed to domestic violence have been found to have similar levels of emotional and behavioral problems, trauma symptoms, and compromised social and academic development similar to those of children who are direct victims of the abuse. Samantha Jeffries, In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the "Expert" Assessments That Guide Judicial Determinations, 5 LAWS 1, 2-3 (2016). Even though L. may currently be too young to vividly display the signs of harm from exposure to domestic violence, that does not mean that the risks are not real, and it is in his best interest to minimize his further exposure to such violence.

The impact is not limited to children who witness physical violence. "As one court quoted an expert, `[the domestic violence] isn't necessarily physical but may be more dangerous because it's emotional and much harder to detect.'" Lisa Tucker, Domestic Violence as a Factor in Child Custody Determinations: Considering Coercive Control, 90 Fordham L. Rev. 2673, 2677 (quoting G.I. v. J.S., CK16-03072, 2017 WL 4792366, at *4 [Del Fam Ct May 18, 2017]). The effect can be serious and long term. "Children who witness domestic violence can suffer serious emotional symptoms including internalizing symptoms (e.g., anxiety, depression, fear, shame, social withdrawal, somatic complaints, bedwetting, poor concentration) and externalizing symptoms (e.g., aggression, impulsivity, bullying, criminal behaviors)." Debra Pogrund Stark et. al., Properly Accounting for Domestic Violence in Child Custody Cases: An Evidence-Based Analysis and Reform, 26 Mich J Gender & L 1, 22 [2019]. And the physical separation of the parents does not mean the end of risk of harm, as "post-separation, perpetrators/fathers can continue to target coercive control at children as well as at their ex-partners.... Like adult victims/survivors, many of the children and young people were living under conditions of constraint and entrapment, and coercive control could severely harm their emotional/psychological, social and physical wellbeing and their educational achievement." Emma Katz, Anna Nikupeteri & Merja Laitinen, When Coercive Control Continues to Harm Children: Post-Separation Fathering, Stalking and Domestic Violence, 29 Child Abuse Rev. 310, 322 (2020) (internal citation omitted).

Mr. E. claiming he won't "teach [L.] to hate"^[28] his mother is only feigning innocence when he effectively says he intends to do everything he can to encourage L. to feel the same way about Ms. E. as he does by way of "every detail"^[29] he will tell his son. It is not in L.'s best interest to be in an environment where he would not be allowed to freely love and appreciate both of his parents, nor should he be placed at risk of the long-lasting psychological impacts that can arise from such an environment. He should primarily reside in an environment free from manipulation, sabotage, or conditioning meant to inspire hatred. Conversely, the evidence and testimony has not given the Court any reason to have any serious concerns that Ms. E. intends to foster such an environment for L. which would be similarly hostile to L.'s relationship with his father. Even in the midst of heated text messages between the parties, Ms. E. implored Mr. E. to "think of L. first"^[30] and pointed out that L. "needs his mother, and father too. We both will be in his life, and in each others unfortunately too, despite you want it or not. [sic] Maybe instead of initiating war, try to make peace."^[31] Notably, no credible evidence was presented that Ms. E. failed to comply with this Court's orders regarding Mr. E.'s parenting time during the pendency of this case.

While counsel for Mr. E. contends that his text messages after learning that Ms. E. had left the home with their son were "justifiably angry,"^[32] and contends that Ms. E.'s "entire case was based upon angry text messages sent by the father after she abandoned him and absconded with his baby,"^[33] the Court must be clear that the bulk of relevant evidence to support its findings either significantly pre-date or post-date the period of shock from learning that Ms. E. had left with their son. Ms. E. testified to the constant threats, disrespect, and humiliation she suffered throughout their relationship and before she decided to leave with L., and the text messages admitted as Petitioner's Exhibit 7 are from November 2023, more than seven months after Ms. E. left and the instant custody litigation was commenced. Further, angry text messages, regardless of the time period, are not the sole basis of this decision, but are pieces of significant evidence which corroborate the credible testimony of Ms. E.

Decision and Order on V-06482-23

Accordingly, for the reasons set forth above, it is hereby

ORDERED after the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's warrant and child protective records, and having notified the attorneys for the parties and for the child there are no current results,

Mother, A.E., is awarded sole legal and physical custody of the child L.E.

Father, K.E., is awarded parenting time as follows. He shall have alternate weekends, father to pick up the child from daycare/school on Friday and return the child to mother's home curbside on Sunday by 5pm. He shall also have weekly overnight visits from Tuesday 3pm until Wednesday 7pm. However, once L. is enrolled in full time school, the father's Tuesday evening overnight visits into Wednesday shall be contingent upon on the father residing within 10 miles of the child's home, as to not unduly interfere with his schooling.

Mr. E.'s parenting time shall continue over the summer with pick up at 5:00pm Friday and to Sunday at 5:00pm drop off, exchange location to be curbside at the home of the mother.

The regular parenting schedule shall continue over the summer except that both parents shall be entitled to a two-week block of parenting time over the summer with dates to be provided on March 1 each year. In even years, father's choice shall be given first priority and in odd years, mother's choice shall be given first priority. The continuation of the parenting schedule will allow L. to remain enrolled in any year-round services he may be participating in.

In odd years, father shall have Thanksgiving break from Wednesday before Thanksgiving pickup at school/day care to Sunday at 5:00pm. In even years, mother shall have Thanksgiving break.

In odd years, mother shall have Christmas break from the last day of school/day care until December 26 at 5:00pm and father shall have remainder of break until the night before school resumes at 5:00pm. In even years, father shall have Christmas break from the last day of school/day care until December 26 at 5:00pm and mother shall have remainder of break until the night before school resumes at 5:00pm. Exchanges curbside at mother's home.

The parent who had Thanksgiving shall have the child for the midwinter (February) break of the same school year, if any. The parent who had Christmas shall have the child for the Easter/spring break of the same school year, if any.

Mother's Day shall be with Ms. E., and Father's Day shall be with Mr. E.

The parent not scheduled be with L. on his birthday per the above terms shall be afforded an option to be with him for at least one hour if it falls on a school day, or for four hours if it falls on a weekend. Birthday time must be requested at least 30 days before L.'s birthday.

If either parent shall travel overnight out of the state with L. (except for NJ, CT, or PA), they must provide the address where L. will be to the other at least 48 hours before travel.

Both parents shall have full, independent access to the child's medical, educational and religious records and providers.

Neither parent shall disparage the other, nor allow any third parties to do the same in the presence of the child.

All communication between the parties shall be via the Our Family Wizard app platform or any other mutually agreed upon platform for communication.

Each parent may call/video L. once a day at 7:00pm when he is with the other parent. L. shall be permitted to initiate other calls/video calls to the other parent at other times.

Mother may not relocate with the child beyond a 15-mile radius of her current residence without written consent by father or court order, unless such relocation is closer to the father's residence.

Order on V-10782-23:

This docket is dismissed with prejudice as custody and parenting time is awarded as described above under Docket V-06482-23.

[1] While on cross examination Mr. E. denied that he visited this particular bar "often," but he also did testify that it was the "closest bar to home" and that he would go there "once every ten days, once every two weeks." Tr 8/19/24 at 6-7.

[2] Tr 3/15/24 at 48, lines 13-14.

[3] Id. at 49, lines 1-2.

[4] Id. at 48, lines 24-25.

[5] Respondent's Exhibit A.

[6] Tr 3/15/24 at 28, line 19.

[7] Tr 8/21/24 at 26, lines 14-15.

[8] Tr 9/21/24 at 33, lines 3-4.

[9] Tr 9/23/24 at 70, lines 18-19 ("He would threaten to slap me if I won't stop talking, he would threaten me that he will abuse me, yes ...")

[10] Tr 2/19/25 at 14, lines 9-10.

[11] Id. at 14, lines 13-15.

[12] Petitioner's Exhibit 7 at 2, 3.

[13] Id. at 3.

[14] Petitioner's Exhibit 7 at 5. ("Hate his mother? I don't need to teach him that, once he realizes that she is a money worshipper and that she alienated him from his father, lied about everything, used his father to get money and a green card, and used him to have her lifestyle financed, he will automatically know who she is.")

[15] Respondent's Exhibit K.

[16] Petitioner Father's Post Trial Summation at 10.

[17] Tr 3/15/24 at 48, lines 13-14.

[18] Id. at 50, line 17.

[19] Petitioner's Exhibit 7 at 2 (and duplicated at 3).

[20] Id. at 3.

[21] Id. at 5.

[22] Id. at 7.

[23] Respondent's Exhibit L at 5.

[24] Respondent's Exhibit L at. 8.

[25] Petitioner's Exhibit 7 at 5.

[26] Id.

[27] Tr 12/20/24 at 4, lines 16-21. ("It was always an argument between us. I never wanted to move to New Jersey. He was pushing, pressuring me to move there." ... "Under his pressure, at some point I did agree.")

[28] Petitioner's Exhibit 7 at 5.

[29] Id.

[30] Respondent's Exhibit 7 at 7.

[31] Id.

[32] Petitioner Father's Post Trial Summation at 2.

[33] Id. at 7."

NY CHILD SUPPORT - CONSTRUCTIVE EMANCIPATION NOT PROVED

MATTER OF LE v. Ye, 2025 NY Slip Op 51038 - Westchester Family Court 2025:

"In this proceeding pursuant to Article 4 of the Family Court Act, petitioner L.E. (hereinafter the "father"), filed a modification petition on August 13, 2024 seeking a discontinuance of his child support obligation for his three children, E.E., T.E. and R.E. (collectively the "children") on the ground that the children have been constructively emancipated. By order of referral dated February 21, 2025 (Bowman S.M.), the matter was referred to this Court for hearing.

By way of background, petitioner, Y.E. (the "mother"), filed petitions for custody of the children on October 22, 2018. Various final and temporary custody orders were entered during the pendency of these matters, each providing for sole legal and physical custody to the mother, and supervised and/or unsupervised access for the father with the children. On February 26, 2019, a support magistrate of this Court (Bowman, S.M.) signed an Order of Support directing respondent to pay basic child support and a pro rata share of certain add-on expenses to the mother on behalf of the three children. While the father paid some child support for a period of time, it is undisputed that the father ceased paying all support in 2023, with the last payment of any kind made in November of 2023. Nine months after he stopped paying support, the father filed the modification petition herein seeking to terminate his obligation in its entirety. In the petition, the father alleges that, despite his efforts, the children have refused to see him for six years, by their choice and not his actions, and as a result, are constructively emancipated.

This Court scheduled a hearing on the petition on March 24, 2025 and May 12, 2025. The mother appeared with her counsel Bobbi Borsellino, Esq. The father appeared pro se after relieving his two, prior court-appointed attorneys and declining the Court's offer to assign another.

At the hearing, the father called a mutual friend of the parties to testify to his efforts to get the children to spend time with the father. The witness testified that he reached out to the mother on behalf of the father two or three times to ask her to bring the kids to family-style events. After a while the mother stopped responding to his calls. The father himself testified that the children refused to see him without justification. He stated that he tried to be a father, moving close to them after the divorce and paying what he could for child support, despite being unemployed. He testified that he "constantly" reached out to see the kids. He did not testify to any more specific acts on his part. The father instead pointed to what he sees as efforts by visitation supervisors to portray him as abusive or deviant, including an incident at the YWCA and an incident with the youngest child on a train. He described these reports as unsubstantiated. The father stated that his elder two children, his sons, have not wanted to visit with him for years and that he has had no communication with them since 2019. His youngest child, R.E. had been participating in supervised visits but also stopped wanting to see him. The father testified that, at one scheduled visit, R.E. hid in the back seat of the car, afraid of him. The father repeatedly stated that the children had no reason to fear him and that there is no criminal case or current order of protection against him.

The mother testified credibly that she has consistently encouraged the children to visit or be in touch with their father. She stated that the father never reaches out to the children except on their birthdays and that she has never prevented the children from speaking with him. She stated that she made the boys go to the YWCA for supervised visits even when she knew they would not participate. As to why the older children did not want to see their father, the mother stated that it was due to what they witnessed in the home, including domestic violence and aggressiveness toward the mother and the children. She said they have memories of violence. With respect to the oldest son, E.E., the mother testified that he returned from a supervised visit when he was about 11 years old stating that he was "done;" he would not see his father anymore. E.E. did not explain to her the reason. Since he was very young, she did not want to push him for information. Following a supervised visit in 2019, the second son, T.E., refused to visit with the father any longer. Again, the mother said she did not push for reasons. She knew their history with the father. In addition, the children had their own therapists, and each had an attorney for the child with whom they were able to discuss their reasons. Finally, after an incident at the YWCA, even R.E. started refusing to see the father.

Ultimately, the supervised visitation at the YWCA was canceled after the father failed to show up for several sessions. The mother testified believably that the father had many opportunities but never pushed to see or be involved with the children. She testified that he did not even show up in the custody matter and his petition for custody was dismissed in his absence. Despite all this, the mother stated that she has been encouraging the children to visit with their father for ten years. In addition, she testified that the father has the children's telephone numbers, and they have his. Available means of communication have always existed. The mother stated that she always tells the children whenever the father calls for their birthdays. She further added that she does not allow the children to say anything negative about their father in her presence. If they try to, she cuts them off saying "he's your father; he will always be your father."

The mother also called her brother to testify. He testified to his own efforts to intervene and bring the father and the children together, to get the father to "step up." He did not want the children to grow up without a father as he did. When the brother expressed this concern to the father, he responded that it is "not [his] problem." The brother's efforts were in vain. He testified that the father has not made any effort to be in touch with the children except for calls on their birthdays.

The mother's testimony was supported by the record in this case. The file contains YWCA reports showing that the mother continued to bring all three children to the YWCA even when the boys indicated that they did not want to see the father. In addition, there is a November 12, 2019 YWCA report that indicates that the YWCA visits were terminated at that time due to the father's failure to show up for several visits. The file also contains a report of an October 20, 2020 visit between the father and the youngest child (R.E.) that had to end early at the request of R.E. after she witnessed the father's "aggressive and/or intimidating behavior" when he became "irate" at overhearing the mother talking on the phone. Following this incident, the YWCA notified the Court that all visits would thereafter be terminated after the father became "hostile with staff" and "bribed a security guard into writing a good report on his behalf." Finally, the court record indicates that the father's custody petition was dismissed on default on October 25, 2023 when the father failed to appear after telling his attorney that he has "moved on."

It should be noted that the father continually stated that the children had no reason to fear him. However, a stay-away order of protection against the father on behalf of the mother and children was in place from May 5, 2018 through January 21, 2022 — for almost four years — following the mother's filing of a family offense petition.

DISCUSSION

"It is fundamental public policy in New York that parents are responsible for their children's support until age 21" (Rosenkrantz v. Rosenkrantz, 21 AD3d 716 [2d Dept 2023]; Matter of Kenneth H. v. Dawn P., 214 AD3d 731, [2d Dept 2023]; see Family Ct Act § 413; Matter of Shisgal v. Abels, 179 AD3d 1070 [2d Dept 2020]). "However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and [parental access] may forfeit any entitlement to support. A child's mere reluctance to see a parent is not abandonment" (Matter of Shisgal v. Abels, 179 AD3d at 1072; see Matter of Roe v. Doe, 29 NY2d 188, 192-193, [1971]; Mitarotonda v. Mitarotonda, 171 AD3d 1040 [2d Dept 2019]). "[W]here 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 parental access rights, the child will not be deemed to have abandoned the parent" (see Matter of Kenneth H. v. Dawn P., 214 AD3d at 732; Matter of Barlow v. Barlow, 112 AD3d 817, [2d Dept 2013]). Such a breakdown in communication between a parent and a child may result from the parent's "malfeasance, misconduct, neglect, or abuse" (Matter of Barlow v. Barlow, 112 AD3d 817 [2d Dep 2013]).Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated (see Matter of Barlow v. Barlow, 112 AD3d at 818). "The burden of proof as to emancipation is on the party asserting it" (Rosenkrantz v. Rosenkrantz, 21 AD3d at 717, Matter of Kenneth H. v. Dawn P., 214 AD3d at 732; see Matter of Shisgal v. Abels, 179 AD3d at 1072). In this case, the father has failed to meet his burden of demonstrating the children are constructively emancipated. As an initial matter, it must be noted that the youngest child, R.E., is only 7 years old and can hardly be said to be of "employable age" (see Saunders v. Aiello, 59 AD3d 1090 [2d Dept 2009]; Matter of Ryan v. Schmidt, 221 AD2d 449, 450 [2d Dept 1995]). With regard to the two elder children, the record demonstrates that it was the father who caused the breakdown of the relationship with the children through his own conduct toward the children and the mother, causing the children to justifiably discontinue the relationship (see Matter of Barlow v. Barlow, 112 AD3d 817 [2d Dept 2013]). Moreover, following the rupture, the father failed to demonstrate that he made serious or consistent efforts to contact his children in the years since the supervised visitation ceased (see Matter of Glen L.S. v. Deborah A.S., 89 AD3d [2d Dept 2011] (no constructive abandonment found where father made no serious effort to maintain his relationship with the children); see also Matter of Basile v. Wiggs, 156 AD3d 619, 621[2d Dept 2017] (father made no serious efforts to contact the child or exercise visitation); Radin v. Radin, 209 AD2d 396, [2d Dept 1994] (a few telephone calls cannot be construed as a serious attempt to maintain a relationship with a child). To the contrary, the uncontroverted testimony showed only lackluster and intermittent attempts by the father to connect with the children. Moreover, the father was unable to establish that the mother interfered with or hindered their relationship in any way. The record shows that she encouraged the children to maintain contact with the father and did not allow them to disparage him in her presence (see Saunders v. Aiello, 59 AD3d 1090 [2d Dept 2009]) (mother's failure to encourage the relationship between the child and the father following a rift did not warrant discontinuance of support where her actions do "not rise to the level of `deliberate frustration' of the non-custodial parent's rights). Despite the mother's encouragement, the children still chose of their own accord not to see the father. However, reluctance to see a parent is not abandonment, particularly where, as here, the children have a verifiable justification to support their decisions (see Matter of Glen L.S. v. Deborah A.S., 89 AD3d [2d Dept 2011]; Radin v. Radin, 209 AD2d 396, [2d Dept 1994]).

The record in this case is replete with evidence of the father's refusal to take accountability for his own actions and their role in the destruction of his relationship with his children. Rather than putting forth any serious demonstration of his own efforts to keep in touch, to support or to develop any meaningful relationship with his children, the father repeatedly sought, without any evidence, to lay blame for the failure of his relationship elsewhere. The reports of the father's inappropriate, aggressive and violent conduct, a dearth of any verifiable efforts on his part to connect with the children or repair the damage caused by his actions, and finally, his abandonment of the custody matter, demonstrate that the failure of his relationship with the children falls solely at his feet.^[1]

ACCORDINGLY, IT IS HEREBY

ORDERED that the father's modification petition is hereby dismissed with prejudice.

[1] The case of Thompson v. Thompson, 78 AD3d 845 (2d Dept 2011), repeatedly referenced by the father, does not require a different result as it is readily distinguishable. In that case, the Court found that the mother repeatedly interfered with the court-ordered visitation, disparaged the father and encouraged the estrangement. None of these elements was supported by the evidence in this case."