        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1358
CAF 14-00847
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF ONEIDA COUNTY DEPARTMENT OF
SOCIAL SERVICES, ON BEHALF OF ALLAN CHRISTMAN,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CHARLES CHRISTMAN, SR., RESPONDENT-RESPONDENT.


TRACY L. PUGLIESE, CLINTON, FOR PETITIONER-APPELLANT.


     Appeal from an order of the Family Court, Oneida County (Joan E.
Shkane, J.), entered August 7, 2013 in a proceeding pursuant to Family
Court Act article 4. The order denied the objection of petitioner to
the order of the Support Magistrate.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Oneida County, for further proceedings in
accordance with the following Memorandum: Petitioner appeals from an
order denying its objection to the order of the Support Magistrate,
which determined that respondent father was relieved of any obligation
to support his child because he established that the child was
emancipated (see generally Matter of Parker v Stage, 43 NY2d 128, 133-
135). We reverse.

     It is well established that “ ‘[a] parent is obligated to support
his or her child until the age of 21 (see Family Ct Act § 413) unless
the child becomes emancipated’ ” (Matter of Cedeno v Knowlton, 98 AD3d
1257, 1257), and that “[t]he Legislature has imposed a statutory duty
upon parents to support their children who are welfare recipients in
order to save the general public the cost of supporting them” (Matter
of Henry v Boyd, 99 AD2d 382, 387, affd 65 NY2d 645; see § 415).
“[U]nder the doctrine of constructive emancipation, ‘a child of
employable age who actively abandons the noncustodial parent by
refusing all contact and visitation’ may forfeit any entitlement to
support” (Matter of Burr v Fellner, 73 AD3d 1041, 1041). “[I]f a
minor has abandoned a parent as outlined in Matter of Roe v Doe [29
NY2d 188, 192], that parent is not obligated to reimburse [petitioner]
for any public assistance expended for the support of that child”
(Basi v Basi, 136 AD2d 945, 947, lv dismissed 72 NY2d 952). The
burden of proving emancipation is on the party asserting it (see
Matter of Gold v Fisher, 59 AD3d 443, 444; see also Schmitt v Schmitt,
107 AD3d 1529, 1530).
                                 -2-                          1358
                                                         CAF 14-00847

     Here, at the time period relevant to the instant support
petition, the father was no longer the child’s custodial parent when
the child became eligible for public assistance. The record
establishes that the child had lived with his biological mother for
years before he moved into his own apartment and started receiving
public assistance. The father failed to present any evidence that the
child had abandoned a relationship with him, and, to the contrary, the
record establishes that the father had given the child monetary
support after the child moved out of his home and that the father had
spoken to the child throughout these proceedings (cf. Basi, 136 AD2d
at 947). Thus, the father failed to meet his burden of proving that
the child was emancipated, and Family Court erred in denying
petitioner’s objection to the order of the Support Magistrate.

     The subject child is now 21 and, thus, the father owes no
continued support obligation toward him (see generally Family Ct Act §
413 [1] [a]). Because the father was not relieved of his duty to
support his child before he turned 21, however, petitioner is entitled
to retroactive support dating back to the time that the child became
eligible for public assistance, inasmuch as the record establishes
that the child was still receiving public assistance when petitioner
filed the support petition (see § 449 [2]; cf. Matter of Onondaga
County Commr. of Social Servs. v Smith, 19 AD3d 1066, 1067). Because
the record is insufficient for us to determine the father’s
retroactive support obligation (see Matter of Tufano v Sheridan, 249
AD2d 313, 314), we reverse the order and remit the matter to Family
Court for that purpose, and to determine “whether payment should be
made in one lump sum or in installments” following a hearing if
necessary (McCoy v McCoy, 254 AD2d 732, 733; see Schmitt, 107 AD3d at
1530).

     Finally, we deny petitioner’s request for an order directing the
father to add the child to his health insurance inasmuch as the father
cannot be compelled to support his now 21-year-old child in the
absence of an express agreement to the contrary (see Ciampa v Ciampa,
47 AD3d 745, 748; see generally Family Ct Act § 413 [1] [a]).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
