Decided: December 14, 2007

Judge Richard S. Lawrence

NASSAU COUNTY
Family Court

This matter was referred to this Court for determination as to whether an existing support order should be suspended under the doctrine of constructive emancipation.

This Court has reviewed the docket and procedural history of this matter. On or about July 10, 2007, the petitioner-mother D.P., filed a petition alleging that the child, P., born , refused contact with her for approximately three and one-half years. The parties appeared for conference before the Support Magistrate on August 21, 2007. In light of these allegations, the Support Magistrate referred the matter to this Court pursuant to Family Court Act §439(a). After conference before this Court, a law guardian was assigned to represent P. and a schedule for submission of papers on the issue of constructive emancipation was established.

By way of notice of motion, the petitioner requests that an order be made terminating the child support obligation based upon constructive emancipation. The petitioner alleges that the child has had no contact with her whatsoever and that in "January" (no year is stated) the child packed her belongings, and moved out of her house. Although the petitioner had custody, due to differences of opinions regarding money, the child left the mother's care and moved in with the respondent-father.

Since that "day," the petitioner has had no contact with the child. The petitioner alleges that for over two years, she has gone to the respondent's house, in an attempt to communicate with the child, that she has left telephone messages for the child, sent her cards and that she has sought out the child at the Sunrise Mall, all without success. According to the petitioner, the only contact that she has had with the child has been via email, regarding money.

The respondent-father, J.J.D., stresses that the petitioner's papers are devoid of detail and documentation, regarding the times and places in which she attempted contact with the child. The respondent stresses that the petitioner has not been forthcoming with the Court, and has not disclosed the physical and mental abuse perpetrated against the child. The respondent emphasizes that since March of 2004, the petitioner has had no contact with the child, and although it was suggested at the last court conference that the petitioner and child meet, the petitioner has rejected this offer.

The Law Guardian contends that the child was sixteen when she moved out of the petitioner's home and in with her father, and that this move was made at the petitioner's request. When the child was between the ages of sixteen and seventeen, she emailed the petitioner, but did not receive any replies. The petitioner and the child have discussed college costs via email, which the Law Guardian has submitted as part of the papers. Finally, the Law Guardian states that his client would communicate with the petitioner, since she "recognizes the value of having a relationship with both parents." (Law Guardian Affirmation, page 2.)

Family Court Act §413(1)(a) provides that the parents of a child under the age of twenty-one years are chargeable with the support of their child. However, emancipation of a child may serve to suspend such a support obligation. Thus, children are deemed to be emancipated if they have become economically independent of their parents by way of entry into military service, or marriage, and may be constructively emancipated if without cause, they withdraw from parental control and supervision, or where the child unreasonably refuses all contact and visitation with the non-custodial parent. Compare Roe v. Doe, 29 NY2d 188 (1971) and Matter of Alice C., v. Bernard G.C., 193 AD2d 97 (2nd Dept. 1993).

The proponent of the defense of constructive emancipation has the burden of proof on this issue. Shabazian v. Shabazian, 246 AD2d 688, 689 (3rd Dept. 1998), Holscher v. Holscher, 4 AD3d 629 (3rd Dept. 2004). The moving party must prove, prima facie, that he is entitled to a hearing. See Marshall v. Marshall, 1 AD3d 323 (2nd Dept. 2003).

In this matter, questions of fact have been set forth which this Court cannot determine without a hearing. The petitioner has established the minimum requirements necessary for a hearing on this issue. This Court must therefore conduct a hearing to decide whether the support obligation may be suspended or terminated based upon constructive emancipation.

The parties and counsel are directed to appear before the Honorable Carnell T. Foskey of this Court for conference on January 16, 2008, at 9:00 am.

This Constitutes the Decision and Order of this Court.