In divorces or family law matters, the term “emancipation” is often most closely associated with a parent’s obligation to financially support his/her child, and how that obligation may be terminated. In New York State, the obligation to financially support a child lasts until the child is 21 years old or otherwise emancipated. This obligation exists whether the child is born of a marriage or out of wedlock. In the latter case, a determination of paternity by a court may be required before an obligation is imposed.
In connection with divorces, it is the non-custodial parent that has the obligation to pay basic child support until the child is emancipated. The parties can also agree that the support will be paid beyond the child reaching 21 years of age. For example, a common agreement is that support will be paid until the child reaches the age of 22 years old, IF he or she is in college on a full-time basis.
In addition to a child emancipating by virtue of his or her age or by another agreed upon triggering event (ie – college attendance), the law provides for other factors, which will terminate a parent’s support obligation. Emancipation will be deemed to have occurred upon the earliest happening of any of the following events:
(a) The child attaining the age of twenty-one years;
(b) Marriage of the child, even though said marriage may be void or voidable, and despite any subsequent annulment or termination thereof;
(c) Entry of the child into the active military service of the United States, said emancipation to continue only as long as the child is active in said military service. If the child shall terminate active service prior to the occurrence of another emancipation event, the child shall again be deemed to be unemancipated until the occurrence of another emancipation event;
(d) Engaging in full-time employment whereby the child is fully self-supporting, but not including employment during school recesses;
(e) The child establishing a permanent residence away from that of the residential parent. Residence at a camp, boarding school, college or travel shall not be deemed a change in the permanent residence of a child sufficient to constitute emancipation. If a child establishes a permanent residence away from that of the residential parent and subsequently reestablishes a permanent residence with them prior to another emancipation event,then the period of emancipation shall cease until the happening of another emancipation event;
(f) Death of a child or one of the parties hereto. The above factors are generally included in a well drafted Stipulation of Settlement.
A parent may also seek to terminate support when a child chooses to live with who was initially the non-residential parent. In extreme cases, emancipation also may be sought based upon a child’s refusal to have a relationship with the paying parent and/or when the other parent is or has engaged in parental alienation. These situations often become highly litigious and require a high burden of proof.
A caveat in connection with seeking to emancipate a child for purposes of support is that the emancipation event is generally not self-effectuating. In
other words, a party seeking to emancipate a child(ren) will need to petition the court to do so instead of engaging in what is generally known as self- help. To do otherwise will undoubtedly expose the paying parent to a contempt or other enforcement proceeding. This is especially relevant when there are other children that remain unemancipated, and where the support obligation must be recalculated.