Constructive emancipation

[Yurgee]

What is the name of your state (only U.S. law)? NY

My ex-wife has filed a petition wanting to stop child support because she states that my son has constructively emancipated himself from her. I'll save you the details unless you want me to list them, but I took custody of my son (17 years old) in April 2010 and my ex was ordered to pay child support. The short of it is that my son has tried and placed effort towards communicating and visiting but my ex is stubborn.

In your experience, how often is constructive emancipation in NY found to be a grounds for support termination?

I do not believe that she meets the requirements that are associated with it and I hadn't heard of it until I was served, so I was curious to know if it happens often.

Thanks

 

[mistoffolees]

What is the name of your state (only U.S. law)? NY

My ex-wife has filed a petition wanting to stop child support because she states that my son has constructively emancipated himself from her. I'll save you the details unless you want me to list them, but I took custody of my son (17 years old) in April 2010 and my ex was ordered to pay child support. The short of it is that my son has tried and placed effort towards communicating and visiting but my ex is stubborn.

In your experience, how often is constructive emancipation in NY found to be a grounds for support termination?

I do not believe that she meets the requirements that are associated with it and I hadn't heard of it until I was served, so I was curious to know if it happens often.

Thanks

There's no such thing as 'emancipated from ONE parent'. Either the child is emancipated or not. By the standard your ex is trying to use, ALL children who have a primary custodian would be emancipated from NCP.

Emancipation means that the child is fully independent and can function without receiving financial help from any other adult. So what's the deal? Is the child living with you? Are you supporting the child? Is the child paying for transportation, medical costs, food, shelter, etc?

Unless the child is completely independent and not requiring any support from you (or any other adult), then your ex is blowing smoke.

 

[Yurgee]

New York

In New york there is something called constructive emancipation. It is when a child alienates the NCP that is paying child support. I didn't know about it until I was served.

 

[mistoffolees]

In New york there is something called constructive emancipation. It is when a child alienates the NCP that is paying child support. I didn't know about it until I was served.

Thanks for the clarification.

From what I've seen, it looks like there's a fairly high burden to prove constructive emancipation. If the child has any contact with NCP, then they can't prove constructive emancipation.

So it's up to you to ensure that the child visits, or at least talks to, NCP regularly.
Constructive Emancipation, Burden of Proof and Contact With the Child By Non-Custodial Parent | Rochester Family Lawyer

 

[BL]

Is there a court order of visitations ?

If so how long has the visits been denied ?

If so, what were your attempts to enforce the visitations ?

In NY, CS obligations can be suspended or terminated for denial of visitations , but again there has to be an effort to enforce the visitations and the denial would have to have happened over enough length of time .

 

[Yurgee]

Specifics

There is no specific visitation schedule. When I began physical custody, the order states that there will be liberal visitation.

There has not been any denial. My ex wife is claiming that she hasn't seen or talked to my son and that it is because of him. He has tried on several occasions to communicate and one time asked to visit. He left her house because he wasn't getting along with her like he once did. He explained this to the law guardian, but I do not know what he said to him.

I have encouraged him as the order states. She doesn't communicate with me other than to criticize what I do. I ask him often to call her and he tries and I always ask on special days like birthdays and Mother's day and so on.

 

[mistoffolees]

There is no specific visitation schedule. When I began physical custody, the order states that there will be liberal visitation.

There has not been any denial. My ex wife is claiming that she hasn't seen or talked to my son and that it is because of him. He has tried on several occasions to communicate and one time asked to visit. He left her house because he wasn't getting along with her like he once did. He explained this to the law guardian, but I do not know what he said to him.

I have encouraged him as the order states. She doesn't communicate with me other than to criticize what I do. I ask him often to call her and he tries and I always ask on special days like birthdays and Mother's day and so on.

You'll need to be able to document the times he tries to contact her or see her - even a hand-written diary may be good enough.

Assuming you can do that, she probably doesn't have much of a case.

 

[muchneededhelp]

Is your son using a cell phone to contact mom? Leaving voicemails when she doesn't answer? You could always show evidence that he has attempted contact thru cell phone bill(s).

In order to prove Contructive Emancipation, she would also have to prove that she is trying to foster a relationship with her son, and he has consistently ignored her attempts. Phone calls, emails, letters, cards, gifts... all considered attempted contact. This isn't for 1-2 months, this has to be months upon months of your son repeatedly denying his mother any contact.

http://www.lawjaw.com/documents/Aug08NYFam.pdf

Here is some information for you.

 

[Yurgee]

Yes we do have a list and will supply it.

I was reading a link that was provided and it clearly states that she has to prove that she has been trying. I'm not sure how she's going to go about that because she hasn't called me at all and I have looked at his phone records and there's only been three calls since April 2010.

Unfortunatley she's causing an issue with my son and I think that they should have a good relationship. It is clear after reading the petition that it is about money and not my son.

 

[stealth2]

I took custody of my son (17 years old) in April 2010

Was he 17 then, or 17 now?

 

[Yurgee]

Now

He is 17 now.