| Matter of Dewitt v Giampietro |
| 2009 NY Slip Op 07408 [66 AD3d 773] |
| October 13, 2009 |
| Appellate Division, Second Department |
| In the Matter of Everett Dewitt, Respondent, v AntoinetteGiampietro, Appellant. |
—[*1] Bryan L. Salamone, P.C., Dix Hills, N.Y. (Jeffrey D. Herbst of counsel), for respondent. Robert G. Venturo, Islandia, N.Y., attorney for the child.
In a child support proceeding pursuant to Family Court Act article 4, the mother appealsfrom an order of the Family Court, Suffolk County (Lechtrecker, J.), dated March 18, 2008,which granted the father's motion to declare the parties' child constructively emancipated andterminated the father's future support obligation.
Ordered that the order is reversed, on the facts, without costs or disbursements, the father'smotion to declare the parties' child constructively emancipated is denied, and the father's childsupport obligation is reinstated.
It is fundamental public policy in New York that parents are responsible for their children'ssupport until age 21 (see Family Ct Act § 413; Matter of Gold v Fisher, 59 AD3d 443, 444 [2009]; Matter ofRoe v Doe, 29 NY2d 188, 192-193 [1971]). Nevertheless, under the doctrine of constructiveemancipation, "a child of employable age who actively abandons the noncustodial parent byrefusing all contact and visitation" may forfeit any entitlement to support (Matter of Alice C.v Bernard G.C., 193 AD2d 97, 109 [1993]; see Matter of Gold v Fisher, 59 AD3d at444; Family Ct Act § 413). "In contrast, where it is the parent who causes a breakdown incommunication with his child, or has made no serious effort to contact the child and exercise hisvisitation rights, the child will not be deemed to have abandoned the parent" (Matter of AliceC. v Bernard G.C., 193 AD2d at 109; see Matter of Gold v Fisher, 59 AD3d at 444).
" 'The burden of proof as to emancipation is on the party asserting it' " (Matter of Gold vFisher, 59 AD3d at 444, quoting Schneider v Schneider, 116 AD2d 714, 715[1986]). In this case, the evidence in the record is insufficient to support the Family Court'sfinding that the father met his burden (see Radin v Radin, 209 AD2d 396 [1994];Matter of Alice C. v Bernard G.C., 193 AD2d at 110).
Although the Family Court is in the best position to assess the credibility of the witnesses(see Matter of Commissioner of Social Servs. v Jones-Gamble, 227 AD2d 618, 619[1996]), there is an [*2]insufficient basis in the record to supportthe finding that the daughter unjustifiably refused contact and visitation with her father.Furthermore, although after the incident which gave rise to the daughter's refusal to have contactwith the father, the father attempted to contact the daughter, those attempts ceased afterapproximately one month and cannot be deemed serious efforts to establish a relationship withthe daughter (see Radin v Radin, 209 AD2d 396 [1994]; Matter of Alice C. v BernardG.C., 193 AD2d at 110; compare Matter of Chamberlin v Chamberlin, 240 AD2d908 [1997]; Matter of Rubino v Morgan, 224 AD2d 903 [1996]). Moreover, the daughtertestified that she loved her father and would be willing to re-establish visitation with her fathergradually through counseling (see Radin v Radin, 209 AD2d 396 [1994]; Matter ofAlice C. v Bernard G.C., 193 AD2d at 110). "A child's reluctance to see a parent is notabandonment, relieving the parent of any support obligation" (Radin v Radin, 209 AD2dat 396). Mastro, J.P., Balkin, Dickerson and Lott, JJ., concur.