IN RE: Barry SHISGAL (2020)

DECISION & ORDER

In related proceedings pursuant to Family Court act articles 4 and 6, the father appeals from an order of the Family Court, Rockland County (Sherri L. Eisenpress, J.), entered March 30, 2018.  The order, insofar as appealed from, after a hearing, denied the father's petitions to modify a prior so-ordered stipulation so as to award him custody of the children Shira S. and Tammy S., and for downward modification of his child support obligation on the ground of constructive emancipation.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Absent a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and the decision is a matter of discretion and personal conscience (see People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200;  Matter of O'Donnell v. Goldenberg, 68 A.D.3d 1000, 890 N.Y.S.2d 331).  Here, the father failed to set forth any demonstrable proof of bias or prejudgment of the matter to warrant the conclusion that the Family Court's denial of his motion to recuse was an improvident exercise of discretion (see Matter of O'Donnell v. Goldenberg, 68 A.D.3d at 1000, 890 N.Y.S.2d 331;  Impastato v. Impastato, 62 A.D.3d 752, 879 N.Y.S.2d 509).

An order of custody or parental access may be modified only upon a showing that there has been a subsequent change of circumstances such that modification is required to ensure the best interests of the child (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 76, 103 N.Y.S.3d 445;  Matter of Gansburg v. Behrman, 167 A.D.3d 882, 883, 90 N.Y.S.3d 1;  Matter of Bacchus v. McGregor, 147 A.D.3d 1049, 1050, 48 N.Y.S.3d 683).  “The court must determine whether the totality of the circumstances justifies modification” (Matter of Snowden v. Snowden, 162 A.D.3d 675, 676, 78 N.Y.S.3d 229;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260).  “The factors to be considered include ‘whether the alleged change in circumstances suggests that one of the parties is unfit to parent, the nature and quality of the relationships between the child and each of the parties, the ability of each parent to provide for the child's emotional and intellectual development, the parental guidance that the custodial parent provides for the child, and the effect an award of custody to one parent might have on the child's relationship with the other parent’ ” (Matter of Dokmeci v. Herbert, 167 A.D.3d 877, 878, 90 N.Y.S.3d 258, quoting Matter of Connolly v. Walsh, 126 A.D.3d 691, 693, 5 N.Y.S.3d 241).  “[T]he court must also ‘consider the stability and continuity afforded by maintaining the present arrangement’ ” (Matter of Dokmeci v. Herbert, 167 A.D.3d at 878, 90 N.Y.S.3d 258, quoting Matter of McDonough v. McDonough, 73 A.D.3d 1067, 1068, 899 N.Y.S.2d 892).  Since a custody and parental access determination “necessarily depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the hearing court's findings in this regard, and its findings will not be disturbed unless lacking a sound and substantial basis in the record” (Matter of Dokmeci v. Herbert, 167 A.D.3d at 878, 90 N.Y.S.3d 258;  see Matter of Estrada v. Palacios, 148 A.D.3d 804, 50 N.Y.S.3d 292).

Here, contrary to the father's contention, the Family Court's determination to deny his petition to modify a prior so-ordered stipulation so as to award him custody of the children Shira S. and Tammy S. is supported by a sound and substantial basis in the record.  The mother has been the children's custodial parent for all of their lives, and the father failed to present sufficient evidence that she is unfit to continue as the custodial parent or that she engaged in parental alienation to warrant a change of custody.

We agree with the Family Court's determination to deny the father's petitions for downward modification of his child support obligation.  “It is fundamental public policy in New York that parents are responsible for their children's support until age 21” (Matter of Jurgielewicz v. Johnston, 114 A.D.3d 945, 945, 981 N.Y.S.2d 733 [internal quotation marks omitted];  see Family Ct Act § 413;  Matter of Barlow v. Barlow, 112 A.D.3d 817, 818, 976 N.Y.S.2d 573;  Matter of Gold v. Fisher, 59 A.D.3d 443, 444, 873 N.Y.S.2d 139).  “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and [parental access] may forfeit any entitlement to support.  A child's mere reluctance to see a parent is not abandonment” (Matter of Barlow v. Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573;  see Matter of Grucci v. Villanti, 108 AD3d 626, 626–627, 969 N.Y.S.2d 493;  Schulman v. Schulman, 101 A.D.3d 1098, 1099, 956 N.Y.S.2d 577).  Where it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her parental access rights, the child will not be deemed to have abandoned the parent (see Matter of Barlow v. Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573;  Schulman v. Schulman, 101 A.D.3d at 1099, 956 N.Y.S.2d 577;  Matter of Glen L.S. v. Deborah A.S., 89 A.D.3d 856, 857, 932 N.Y.S.2d 177;  Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 109, 602 N.Y.S.2d 623).  Such a breakdown in communication between a parent and a child may result from the parent's “malfeasance, misconduct, neglect, or abuse” (Matter of Barlow v. Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573, citing Matter of Wiegert v. Wiegert, 267 A.D.2d 620, 699 N.Y.S.2d 597).  Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated (see Matter of Barlow v. Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573;  Labanowski v. Labanowski, 49 A.D.3d 1051, 857 N.Y.S.2d 737).  “The burden of proof as to emancipation is on the party asserting it” (Schneider v. Schneider, 116 A.D.2d 714, 715, 498 N.Y.S.2d 23;  see Matter of Barlow v. Barlow, 112 A.D.3d at 818, 976 N.Y.S.2d 573;  Schulman v. Schulman, 101 A.D.3d at 1099, 956 N.Y.S.2d 577;  Matter of Glen L.S. v. Deborah A.S., 89 A.D.3d at 857, 932 N.Y.S.2d 177).

We agree with the Family Court's determination that the father failed to meet his burden of demonstrating that the parties' three oldest children were constructively emancipated.  The father failed to establish that his behavior was not a primary cause of the deterioration in his relationship with those children.  Further, the father failed to demonstrate that a separate hearing was necessary to give him another opportunity to present evidence of constructive emancipation to the court.

The father's remaining contention is not properly before this Court.

DILLON, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.