Throughout the past year, I’ve been publishing a series of guides intended to support anyone who wants to learn more about the common issues that emerge in family law and divorce cases. This particular guide is a continuation of the Child Support series.
For this section of the guide, I will be looking at constructive emancipation, and what it means to child support requirements in a family law case. There are certainly cases where the emancipation of a child might be deemed appropriate. This will lead to a termination of child support in those instances. In this blog I will also be discussing the complexity of paternity in family law.
For the paternity part of this guide, we’ll consider what equitable estoppel means, and when DNA might not matter to legal decisions.
Constructive Emancipation in Family Law
In New York, parents have a duty to continue supporting their children until the reach the age of adulthood (21), or until they are emancipated. Constructive emancipation is a case law made concept, that family law lawyers, might need to consider, which acts as a defense to the requirement to pay support according to the guidelines developed by the Child Support Standards Act.
- A child may be emancipated because they join the military or gets married according to New York law. Children of employable ages can also be emancipated when they are deemed economically independent, or they voluntarily abandon the parent or parent’s home.
- Economic independence often occurs when a child supports themselves by working full time. The debate over constructive emancipation, however, when it is based on financial circumstances, usually refers to whether or not the child is generating the right amount of income while still working full-time. When a child of employable age, but under 21, is working, but still needs to receive assistance from a parent for important items like utilities, insurance, or food, the child is usually not deemed to be emancipated.
- Cases of abandonment are often trickier than cases of economic independence. They are usually more subjective, and the New York courts often hold that a child’s right to support, and a parent’s right to custody or parenting time are reciprocal. Courts will need to determine whether the child left the home to avoid excessive control, or whether there was no good cause.
- The doctrine of constructive emancipation is also applicable to non-custodial parents where a child unreasonably refuses all visitation and contact. In other words, has the child abandoned the non-custodial parent by refusing to have a relationship with him or her, without good cause. Parental alienation could be a factor, in some situations, and constructive emancipation may be necessary if the situation is beyond mere reluctance, rather than abandonment, of the child to speak with or visit with the parent in question. The courts will consider why the relationship between the parent and child broke down.
- The doctrine for constructive emancipation might arise in defense to a new request for child support, or as a basis to terminate a prior order requiring support. This request for termination is considered a modification to the original order. A party looking to modify the support provision at any time must demonstrate a significant change in circumstances subsequent to the last order.
Understanding Paternity in New York Child Support
Paternity in cases of New York Child support is a legal declaration that indicates someone is the father of a child. The legal paternity recognition is necessary for many rights and obligations regarding custody, child support, parenting time, and inheritance, to name some of the major ones.
- Since New York now recognizes same-sex marriages, the legal recognition of paternity is still under development for same sex couples. There are also various complications that may arise in a case where a couple is married but share a child
- A married man will be presumed by the law to be the father of the child that his wife gives birth to, unless legal information proves otherwise. If another man files a case for paternity, the presumed father will be required to receive notice of the case and usually be made a party to the case.
- Unmarried couples could establish paternity when both parents execute an acknowledgement of paternity which then causes the father to be listing on the birth certificate of the child. Recorded acknowledgements of paternity are the same as an order of filiation. Within 60 days of the signing of the document, either party can file a petition to vacate this acknowledgement.
- Establishing paternity for a parent that doesn’t have an acknowledgement of paternity, or the presumption created by marriage, requires a specific petition in family court. DNA or genetic tests may be requested in these cases.
- After an establishment of paternity in a case of family law, the courts inquire whether there is a request to order child support. If a request is launched, the case will shift gears to become a proceeding for child support. Paternity needs to be established before visitation and support issues are discussed.
What About Equitable Estoppel?
The law of New York indicates that paternity proceedings may be initiated at any time from the time a mother is pregnant, until the child is 21 years old. If a motion for DNA testing is requested, the court will often order this test unless they find it is not in the best interest of the child.
- Equitable estoppel may prevent the genetic or DNA testing of a child in a family law cases. This concept indicates that it would not be fair to hold a DNA test against a person after they have held themselves to be the father of the child by providing food, parenting time, clothing, support, and so on.
- Estoppel may be applied to prevent a DNA test requested by a potential father, mother, or someone else who has an interest in a case. This may also be applied to prevent a DNA test from a man that has claimed he is the biological father from maintaining a case when he has allowed someone else to be the estoppel father.
- As with all things in family law cases involving a child, or children, findings to request and apply equitable estoppel must be deemed in the best interests of the children. This solution aims to ensure that rights can’t be enforced against someone that might lead to injustice.
- It is not enough for a person to simply claim estoppel in a case of child support or family law. They must be able to show evidence that the court can use to dictate that estoppel is relevant in this case. Some factors that might be weighed include the importance of a child knowing their biological parent, any trauma that a test may have on a child, and the impact that the case might have on a child’s relationship with their parents.
If you have any questions about the issues raised above, or you would like to discuss your own case regarding family law and paternity, please read through the other articles on this website. You can also contact my office to schedule an initial consultation (up to the first half hour is free) either by calling (516) 333-6555 or using our contact form.