Although many issues are addressed during divorce litigation, there are often questions that come up after an agreement has been reached. One of the most common issues is when a parent no longer has to pay child support.
Typically, a parent ceases to be responsible for support payments upon what is known as the emancipation of the child. Under NY law, this is when a child reaches 21 years of age. However, parties frequently agree to 22 years of age or after four years of college when they want to provide for their children's education. It is also important to note that if there are multiple children, a paying parent cannot adjust downward on their own after any of the children turn 21 years old. This kind of "self-help" is not permitted, and instead, the parent in question must make an application for a downward modification based on the changed circumstances.
However, there are instances where a child may become emancipated before the age of 21, and a parent may move to terminate their support payments for that child. Although there are several ways in which this can occur, the rules are not as broad as some litigants may believe. Some common situations involving emancipation are as follows:
1. If my child refuses to see me, can I move to cease support payments?
Only if the child is of employable age, and not unless the paying parent can show that they are in no way at fault for the child not wanting to see them. In cases where the custodial parent has deliberately alienated the child to this point, or the child has independently terminated the parent-child relationship, a court may declare emancipation.
However, if the child does not want to see the parent because of something they may be at fault for (such as issues with a stepparent, or the payor parent not paying attention to the child during visitation), the court is highly unlikely to declare a child emancipated.
2. What if my child has children of their own?
Unless the child in question is completely financially independent and living on their own (full time job, their own apartment, etc.) and completely outside any kind of parental against the will of both parents, then the payor parent is still responsible for support payments.
3. What if my child lives outside the custodial parent's home?
Once again, a child will not be declared emancipated unless they are deliberately seeking to avoid parental control. Maintaining an apartment paid for by a parent with their consent, residing at college or boarding school, or spending a summer away from home does not qualify as an emancipation event.
Additionally, if the child has left the parental home because of problems caused by the parent or parents, they will not be deemed emancipated by the court and the parents will still be responsible for their respective shares of child support.
4. What if my child gets married before their 21st birthday?
If your child marries another person under the age of 21, and you or your ex-spouse consented, your child remains un-emancipated, and you will still be responsible for child support. However, if the marriage was without parental consent and the child has acted to avoid parental control, then a court may declare that the child in question is emancipated.
5. What if my child is working full time?
Emancipation may be declared where a child is working full time and fully self-supporting (not living at home, or paying contribution towards the cost of room and board at the custodial parent's home) and is not in school/not working to pay for school. If a child is working full time but also in school, emancipation will not be declared.
6. What if my child joins the military?
A child who joins the military before reaching the age of 21 may be emancipated, however, if they are discharged before their 21 st birthday, they will become un-emancipated again and support payments will resume until that date.
As shown above, it takes very specific events to result in the emancipation of a child, and those circumstances may not always be permanent. Therefore, it is important and safest for every non-custodial parent to make an application to the court for termination of support BEFORE acting on their own.