Petition to terminate child support denied by Ontario County Family

Petition to terminate child support denied by Ontario County Family

Jill Miller

Because the petitioner failed to exercise his visitation rights to see his daughter over the last six years, an Ontario County Family Court judge denied a petition to terminate the petitioner’s child support obligations.

In the Matter of Bruce A. v. Alisa M., the petitioner asserted his daughter constructively abandoned him and thus his child support obligations must be terminated. Judge Craig Doran reviewed the facts and arguments before denying the petition.

Case Background

On Oct. 7, 2004, the petitioner, the father of C, moved to modify a prior Ontario County Family Court order, dated May 8, 2003, which required him to pay $200 a week in child support. Specifically, the petitioner asked the court to terminate his child support obligations on the grounds C allegedly abandoned him.

Judge Doran held a hearing on April 4. The petitioner appeared along with the respondent, C’s mother, and C’s law guardian.

Findings Of Fact

The parties in this action were divorced pursuant to a judgment of divorce, dated June 2, 1995. Based on the terms of the parties’ agreement the respondent had sole custody of the couple’s child, a girl born, C, in September 1987.

Under the terms of the agreement, the petitioner had specific periods of visitation. The petitioner claimed he had fairly regular visits with C up until 1998.

Denise R., the petitioner’s former girlfriend, testified that from 1993 to 1998 C came to visit the petitioner in his home, in Earlville, NY, on a fairly regular basis. Specifically, C visited during summer vacations, school breaks and on weekends.

The last time C visited the petitioner at his home was in 1997. The last time the two saw each other was in the fall of 1999 when they went shopping for school clothes.

The petitioner stated, over the years, he had a hard time contacting the respondent and his daughter. He claimed he sent cards and gifts but his daughter never contacted him.

In March 2004, the respondent and C filed a petition to change the child’s last name to the surname of C’s stepfather. The petitioner asserted C should be deemed constructively emancipated for support purposes because she constructively abandoned her father.

The respondent and her daughter have lived in the Canandaigua area for a number of years. The respondent testified that the petitioner’s contact with C has been extremely limited throughout the child’s life.

The respondent claimed the petitioner has never asked about the schools C attended and has never shown any interest in C’s extracurricular activities.

In 2003 the parties appeared together at the Ontario County Courthouse. C did not even recognize her father. According to the respondent, the petitioner stated he wanted nothing to do with C.

In addition, the respondent stated the petitioner never sent C any gifts, letters or cards over the years. She further stated she never interfered with the contact between the petitioner and C.

Court Ruling

First, Judge Doran noted neither party submitted evidence that C refused to have any contact with the petitioner. The judge also noted, even though the petitioner moved to Long Island, he still had the respondent’s telephone number yet he failed to call her.

The judge then reviewed the definition of emancipated children. Children are considered emancipated if they attain economic independence *** [or] may be deemed constructively emancipated if, without cause, they withdraw from parental supervision and control, Matter of Bogin v. Goodrich, 265 AD2d 779.

C is not economically independent. She is a high school senior who lives with her mother and step-father. She is not self- supporting.

Furthermore, this court finds that C cannot be deemed constructively emancipated, Judge Doran wrote in the decision for the court. Although a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation without justification may be deemed to have forfeited his or her right to support, where it is the parent who causes a breakdown in communication with the child through conduct such as malfeasance, misconduct, neglect or abuse, the child’s unwillingness to continue the parent-child relationship is justified and will not be deemed abandonment, Weigert v. Weigert, 267 AD2d 620.

The judge concluded the petitioner failed to produce adequate evidence regarding his specific efforts to foster a relationship with his daughter. In addition, there was insufficient proof to establish emancipation by abandonment, Holscher v. Holscher, 4 AD3d 629.

Where a parent causes the alienation between parent and child or not made serious attempts to contact the child, abandonment will not be found, Radin v. Radin, 209 AD2d 396, the judge wrote. Here, the petitioner has not set forth any evidence of serious attempts made by him to maintain a relationship with C. A few telephone calls cannot be construed as a serious attempt to maintain a relationship with a child.

Noting the petitioner made no effort to visit C in at least six years and that he refused to acknowledge his daughter in 2003 when they were both at the courthouse, Judge Doran denied the petition.

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