| Matter of DeLuca v Strear-DeLuca |
| 2011 NY Slip Op 03846 [84 AD3d 801] |
| May 3, 2011 |
| Appellate Division, Second Department |
| In the Matter of John DeLuca, Appellant, v Marcy J.Strear-DeLuca, Respondent. |
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In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Suffolk County (Hoffmann, J.), dated October 12, 2010, whichdenied his objection to an order of the same court (Joseph-Cherry, S.M.), dated June 10, 2010,which, after a hearing, in effect, denied his motion to vacate a child support order dated May 12,2009.
Ordered that the order dated October 12, 2010, is affirmed, without costs or disbursements.
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 Roe v Doe, 29NY2d 188, 192-193 [1971]). Nevertheless, under the doctrine of constructive emancipation,where "a minor of employable age and in full possession of [his or] her faculties, voluntarily andwithout cause, abandons the parent's home, against the will of the parent and for the purpose ofavoiding parental control [he or] she forfeits [his or] her right to demand support" (Matter ofRoe v Doe, 29 NY2d at 192; seeMatter of Gold v Fisher, 59 AD3d 443, 444 [2009]; Matter of Alice C. v BernardG.C., 193 AD2d 97, 105 [1993]). "The burden of proof as to emancipation is on the partyasserting it" (Schneider v Schneider, 116 AD2d 714, 715 [1986]; see Matter of Goldv Fisher, 59 AD3d at 444).
Where, as here, it is the parent who causes a breakdown in communication with his or herchild, or has failed to make a serious effort to contact the child, the child will not be deemed tohave abandoned the parent (see Matter of Alice C. v Bernard G.C., 193 AD2d at 109).The father's sporadic and inconsistent attempts to contact the subject child were insufficient toestablish that the child abandoned him (see Matter of Gold v Fisher, 59 AD3d at 444;Schneider v Schneider, 116 AD2d at 715). Moreover, while the subject child had, atcertain times in the past, limited contact with her father by withholding her current address, andallegedly seeking an order of protection against him, such reluctance did not constitute anabandonment (see Radin v Radin, 209 AD2d 396 [1994]), particularly since it isundisputed that the child responded to at least some of the father's telephone calls and textmessages during the relevant time period, and the child repeatedly emphasized in her testimonythat she has never wanted to eliminate contact with her father altogether.
The father's remaining contention is without merit. Covello, J.P., Angiolillo, Dickerson andHall, JJ., concur.