IN RE: Kristen Turnow

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Kristen Turnow, respondent, v Albert Stabile III, appellant.

2010–08284 (Docket No. F–2349–02)

Decided: May 31, 2011

PETER B. SKELOS, J.P. THOMAS A. DICKERSON L. PRISCILLA HALL SANDRA L. SGROI, JJ. Courten & Villar, PLLC, Hauppauge, N.Y. (Dorothy A. Courten of counsel), for appellant. Patricia Blake P.C., East Moriches, N.Y., for respondent.

Argued—May 9, 2011

DECISION & ORDER

Catherine C. DeSanto, Riverhead, N.Y., attorney for the children.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Lynaugh, J.), dated August 2, 2010, which, after a hearing, in effect, denied his motion to terminate his child support obligation based on the constructive emancipation of the parties' two children.

ORDERED that the order is affirmed, without costs or disbursements.

It is fundamental public policy in New York that parents are responsible for their children's support until age 21 (see Family Ct Act § 413;  Matter of Roe v. Doe, 29 N.Y.2d 188, 192–193;  Matter of Gold v. Fisher, 59 AD3d 443, 444).   Nevertheless, under the doctrine of constructive emancipation, “a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation” may forfeit any entitlement to support (Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 109;  see Matter of Burr v. Fellner, 73 AD3d 1041, 1041).   However, “[a] child's reluctance to see a parent is not abandonment, relieving the parent of any support obligation” (Radin v. Radin, 209 A.D.2d 396, 396;  see Kordes v. Kordes, 70 AD3d 782, 783).   Moreover, “ ‘[t]he burden of proof as to emancipation is on the party asserting it’ ” (Matter of Gold v. Fisher, 59 AD3d at 444, quoting Schneider v. Schneider, 116 A.D.2d 714, 715).

Here, the Family Court's determination that the father failed to meet his burden of establishing that his children were constructively emancipated is supported by the record.   In this regard, the record demonstrates that the father's own behavior was the primary cause of the deterioration in his relationship with both children (see Kordes v. Kordes, 70 AD3d at 783, Matter of Gold v. Fisher, 59 AD3d at 444;  Radin v. Radin, 209 A.D.2d at 396).   Accordingly, the Family Court properly denied the father's motion to terminate his child support obligation based on the constructive emancipation of the parties' two children.

SKELOS, J.P., DICKERSON, HALL and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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