Family dynamics can be complicated at the best of times. Adding a divorce
into that mixture can sometimes result in a total and complete breakdown in
the relationship between the child of a marriage and a parent, usually the
noncustodial parent. The noncustodial parent is the parent who is not the
residential parent for purposes of child support and is the parent the child or
children do not live with for the majority of the time. In New York, unless
stipulated between the parties, a child is emancipated once they turn 21 years
old.
There have been scenarios where after a divorce has been completed, that the
relationship between a parent and a child continues to worsen and cannot be
repaired. It is at this point, when the relationship has completely broken down
and the child refuses to speak with or see the noncustodial parent that the
parent will begin to ask whether or not they can emancipate their child before
the age of 21. If a child is found to be constructively emancipated, the
noncustodial parent’s child support obligation would be terminated.
This also applies to parents who were never married. If the noncustodial
parent in that scenario is paying child support, the noncustodial parent would
also have the right to seek a constructive emancipation of their child and
thereby terminate their child support obligation.
The legal doctrine of constructive emancipation exists as a mechanism for
emancipation when a child of employable age who refuses to have contact
with or visit with the noncustodial parent, essentially abandons the right to
receive child support from the noncustodial parent. The noncustodial parent
must not be the cause of the breakdown in the relationship with the child. The
noncustodial parent must also make serious efforts to contact the child and to
exercise their rights to visitation.
The Courts have made it very clear, that if a child is justified in refusing to
continue the relationship with the noncustodial parent, then they will not be
considered constructively emancipated. The burden of proof is on the parent
seeking to emancipate the child. This is a very high standard to meet and the
Courts will more often than not, deny the noncustodial parent’s claim because
there is a fundamental public policy in New York that a parent is responsible
for their child’s support until the child obtains the age of 21.
It is best to consult with an attorney to see if constructive emancipation is a
form of relief available to you.
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