WHEN IS MY CHILD EMANCIPATED?
By Sari M. Friedman, General Counsel
FRANY and FRALI
As we all know, in New York State, a child is not emancipated until the
age of 21 except under certain unusual circumstances. The important thing
to remember is emancipation is not automatic. You cannot emancipate a
child, even when both parties agree to early emancipation or your case
fits some of the conditions we will outline here. That's something
that must be done by the Court.
Ideally, parties will define emancipation events in their separation agreement,
or their stipulation of settlement. But again, everything is dependent
upon Court approval. People frequently agree in their separation agreement
that when a child is enrolled in a full time college and is pursuing an
undergraduate degree, the age of emancipation is 22 years or the completion
of four years of college, whichever comes first. Absent such an agreement,
in all other instances, the age of emancipation is 21 unless certain other
factors exist which may trigger an earlier emancipation upon application
to a Court.
In this article, we will look at other factors that have led to early emancipation.
Permanent Residence Away From the Custodial Parent; Avoiding Parental Control
Residence at a boarding school, camp or college is not an emancipation
event. What then is?
In Roe v. Doe, the Court of Appeals made it clear that when a minor of
employable age and in full possession of his or her faculties, voluntarily
and without cause, abandons the parent's HOME against the will of
the parents and for the specific purpose of avoiding parental control,
then he or she forfeits the right to support. This case involved an intact
family but would also apply to split families if the child so abandons
the custodial HOME. But even here, the standards for abandonment are strict.
It would not include, for example, a temporary summer residence with friends,
or off campus housing while attending school. It would not apply at all
to a child who is 15 or less because the child is not of an employable age.
In Conley v, Conley, a child under the age of 21 was arrested, adjudicated
as a juvenile delinquent, and placed in a residential facility. The father
attempted to terminate his child support payments because the child no
longer resided in the mother's HOME. The Court ruled not to relieve
the father of his duty to pay child support. Why? Because although the
mother had temporarily lost custody of the child, she had not abdicated
her parental role nor her responsibilities. At the time of the hearings,
the child was spending some weekends at HOME with his mother. She was
responsible for his transportation to and from the facility and for all
of his expenses during the visits. Obviously, the child did not voluntarily
leave the custodial HOME in order to avoid parental control, and the custodial
parent continued to exercise custodial rights over the child, with the
child's return to HOME being the Court's goal.
Should the Court find that the child's decision to leave the parental
HOME to live elsewhere, was the fault of the parents, the parents will
not be relieved of their obligation to support the child.
In one trial level case, a child who was described by her parents as a
model child, left HOME after a heated argument with her mother and refused
to return. The mother had a serious drinking problem and the father was
too wrapped up in his work to worry much about the child. Further, the
child's older brother was about to be released from jail where he
had served time for burglary. He had a history of violence against both
the mother and child and the child feared his return. In the Court's
opinion, this was not a child seeking to avoid parental control. Rather,
she was a child who had a rational fear of her brother's return and
was desperately seeking the emotional support that she was not receiving at HOME.
In another case, a daughter moved out of her parental HOME against the
wishes of her parents, to live with a boyfriend. They later had a child.
The Court declared the child emancipated, thus forfeiting her right to
support even though she was on public assistance. The rationale? The girl
had had the child after leaving her mother's HOME, against her mother's
wishes, and to escape her mother's control. She also refused her father's
offer to move in with him and his new wife. She clearly wanted to be free
of her parents and do things her own way.
In a similar case, a child moved out of her mother's HOME to live
with her boyfriend and child. But in this instance, the Court found that
the child had no choice but to move out of her father's two room efficiency
apartment which was too small to accommodate him, the child and her baby.
What about a situation where a child moves out of the custodial HOME to
live with the non-custodial parent? It is best to include in your original
agreement or stipulation that in this instance, child support payments
Full Time Employment
A child may be emancipated if, at age of 16 or over, he gets a full time
job. Naturally, this rule excludes employment during school recess. And
if, the child ceases full time employment before the age of 21, he or
she is no longer emancipated unless there is a separate emancipation event.
In cases where the child works 30 to 35 hours a week and pays for his
or her own car, phone, and other expenses, and also contributes to the
custodial parent's budget for room and board, even at a modest level,
the Courts have regularly declared such a child emancipated. However,
if the child is a full time student, the Courts are reluctant to emancipate
that child unless the child also pays all of his or her own costs of education.
A child who is of employable age and refuses to have a relationship with
his or her father, can be emancipated. This was especially so in N. Rosemary
v. B. George, where the child adopted her step-father's name, had
not visited her father in five years, and considers him her "biological"
and not her paternal father. In this instance, the Court granted emancipation.
If your child is under the age of 21 and marries someone under the age
of 21, and if the marriage is with the blessing of the parents of both
spouses, the parents will not be relieved of their obligation to support
the married child. Nor will they be relieved of their support obligations
if they are still able to exercise parental control over the married child.
On the other hand, if a child under the age of 21 marries against the
will of his or her parents, then the Courts are very likely to declare
the child emancipated. It is a question of the parent's ability to
exercise parental control over the child and the child's attempts
to avoid parental control.
When Your Child Enlists in Military Service
If your child enlists in the military under the age of 21, that child
is emancipated according to Zuckerman v. Zuckerman. But if the child is
discharged before his or her 21st birthday, that child will be unemancipated.
Case law is conflicting on whether there are any circumstances other than
the child reaching the age of 21 where emancipation is automatic. DO NOT
ASSUME EMANCIPATION IS EVER AUTOMATIC.
It is important to recognize that even if you believe your child is emancipated
before his or her 21st birthday, you may not stop paying child support
until the Court so rules. You must make an application to the Court to
declare your child emancipated and to terminate the child support order.
The burden of proof is on you. Do not risk being assessed with child support
arrears. Pay support until a Court says otherwise.
A word of caution. Before making such an application, consider what effect
this will have on your relationship with your child. If you have further
speak with our Long Island divorce attorney to begin!