| Matter of Saunders v Aiello |
| 2009 NY Slip Op 00932 [59 AD3d 1090] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of James M. Saunders, Jr.,Respondent, v Donna M. Aiello, Respondent. William L. Koslosky, Law Guardian,Appellant. |
—[*1] Linda M.H. Dillon, County Attorney, Utica (Raymond F. Bara of counsel), forrespondent-respondent.
Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), enteredAugust 15, 2007 in a proceeding pursuant to Family Court Act article 4. The order granted thepetition and suspended the child support obligation of petitioner.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the petition is dismissed.
Memorandum: The Law Guardian appeals from an order suspending the child supportobligation of petitioner father, who alleged in his petition that his two children, ages 14 and 17,have abandoned him. In granting the petition seeking that relief, Family Court determined thatthe children have refused to visit their father or to have any substantial contact with him, and thecourt further determined that respondent mother was indifferent with respect to the visitation ofthe children with their father. It is well established that a " 'child of employable age, who activelyabandons the noncustodial parent by refusing all contact and visitation, without cause, may bedeemed to have forfeited his or her right to support' " (Matter of Chestara v Chestara, 47 AD3d 1046, 1047 [2008]). Here,only one of the two children is of employable age (see Matter of Gottesman v Schiff, 239AD2d 500 [1997]; Matter of Ryan v Schmidt, 221 AD2d 449, 450 [1995]), and thus thecourt erred as a matter of law in determining that the actions of the younger child constitutedabandonment of her father (see Gottesman, 239 AD2d 500 [1997]).
We conclude with respect to the older child that the evidence fails to support the court'sdetermination that she abandoned her father. The children, who reside in Florida, last visitedtheir father in the summer of 2005. The father and the children had an argument on the finalnight of the visit, and the children stayed with a family friend who transported them to the airportthe next day. The father testified at the hearing on the petition that he left one or two messagesfor the children on the [*2]answering machine at their home andthat he called or sent text messages to them on their individual cellular telephones. The fatherfurther testified that the children failed to return his calls or to respond to his text messages. Weconclude that the failure of the older child to contact her father "merely indicates that there was areluctance on [her] part to contact him . . . A child's reluctance to see a parent is notabandonment, relieving the parent of any support obligation . . . , and a fewtelephone calls cannot be construed as a serious attempt to maintain a relationship with a child"(Radin v Radin, 209 AD2d 396 [1994]; cf. Matter of Chamberlin v Chamberlin,240 AD2d 908, 909-910 [1997]; see generally Matter of Kinney v Simonds, 276 AD2d882, 883-884 [2000]).
We further conclude that the court erred in determining that the failure of the mother toencourage visitation warranted the suspension of the father's child support obligation. "Wherethe custodial parent's actions do not rise to the level of 'deliberate frustration' of the noncustodialparent's visitation rights, suspension or termination of support payments is not warranted"(Hiross v Hiross, 224 AD2d 662, 663 [1996]). Present—Scudder, P.J., Hurlbutt,Fahey, Peradotto and Pine, JJ.