MATTER OF LE v. Ye, 2025 NY Slip Op 51038 – Westchester Family Court 2025:
“In this proceeding pursuant to Article 4 of the Family Court Act, petitioner L.E. (hereinafter the “father”), filed a modification petition on August 13, 2024 seeking a discontinuance of his child support obligation for his three children, E.E., T.E. and R.E. (collectively the “children”) on the ground that the children have been constructively emancipated. By order of referral dated February 21, 2025 (Bowman S.M.), the matter was referred to this Court for hearing.
By way of background, petitioner, Y.E. (the “mother”), filed petitions for custody of the children on October 22, 2018. Various final and temporary custody orders were entered during the pendency of these matters, each providing for sole legal and physical custody to the mother, and supervised and/or unsupervised access for the father with the children. On February 26, 2019, a support magistrate of this Court (Bowman, S.M.) signed an Order of Support directing respondent to pay basic child support and a pro rata share of certain add-on expenses to the mother on behalf of the three children. While the father paid some child support for a period of time, it is undisputed that the father ceased paying all support in 2023, with the last payment of any kind made in November of 2023. Nine months after he stopped paying support, the father filed the modification petition herein seeking to terminate his obligation in its entirety. In the petition, the father alleges that, despite his efforts, the children have refused to see him for six years, by their choice and not his actions, and as a result, are constructively emancipated.
This Court scheduled a hearing on the petition on March 24, 2025 and May 12, 2025. The mother appeared with her counsel Bobbi Borsellino, Esq. The father appeared pro se after relieving his two, prior court-appointed attorneys and declining the Court’s offer to assign another.
At the hearing, the father called a mutual friend of the parties to testify to his efforts to get the children to spend time with the father. The witness testified that he reached out to the mother on behalf of the father two or three times to ask her to bring the kids to family-style events. After a while the mother stopped responding to his calls. The father himself testified that the children refused to see him without justification. He stated that he tried to be a father, moving close to them after the divorce and paying what he could for child support, despite being unemployed. He testified that he “constantly” reached out to see the kids. He did not testify to any more specific acts on his part. The father instead pointed to what he sees as efforts by visitation supervisors to portray him as abusive or deviant, including an incident at the YWCA and an incident with the youngest child on a train. He described these reports as unsubstantiated. The father stated that his elder two children, his sons, have not wanted to visit with him for years and that he has had no communication with them since 2019. His youngest child, R.E. had been participating in supervised visits but also stopped wanting to see him. The father testified that, at one scheduled visit, R.E. hid in the back seat of the car, afraid of him. The father repeatedly stated that the children had no reason to fear him and that there is no criminal case or current order of protection against him.
The mother testified credibly that she has consistently encouraged the children to visit or be in touch with their father. She stated that the father never reaches out to the children except on their birthdays and that she has never prevented the children from speaking with him. She stated that she made the boys go to the YWCA for supervised visits even when she knew they would not participate. As to why the older children did not want to see their father, the mother stated that it was due to what they witnessed in the home, including domestic violence and aggressiveness toward the mother and the children. She said they have memories of violence. With respect to the oldest son, E.E., the mother testified that he returned from a supervised visit when he was about 11 years old stating that he was “done;” he would not see his father anymore. E.E. did not explain to her the reason. Since he was very young, she did not want to push him for information. Following a supervised visit in 2019, the second son, T.E., refused to visit with the father any longer. Again, the mother said she did not push for reasons. She knew their history with the father. In addition, the children had their own therapists, and each had an attorney for the child with whom they were able to discuss their reasons. Finally, after an incident at the YWCA, even R.E. started refusing to see the father.
Ultimately, the supervised visitation at the YWCA was canceled after the father failed to show up for several sessions. The mother testified believably that the father had many opportunities but never pushed to see or be involved with the children. She testified that he did not even show up in the custody matter and his petition for custody was dismissed in his absence. Despite all this, the mother stated that she has been encouraging the children to visit with their father for ten years. In addition, she testified that the father has the children’s telephone numbers, and they have his. Available means of communication have always existed. The mother stated that she always tells the children whenever the father calls for their birthdays. She further added that she does not allow the children to say anything negative about their father in her presence. If they try to, she cuts them off saying “he’s your father; he will always be your father.”
The mother also called her brother to testify. He testified to his own efforts to intervene and bring the father and the children together, to get the father to “step up.” He did not want the children to grow up without a father as he did. When the brother expressed this concern to the father, he responded that it is “not [his] problem.” The brother’s efforts were in vain. He testified that the father has not made any effort to be in touch with the children except for calls on their birthdays.
The mother’s testimony was supported by the record in this case. The file contains YWCA reports showing that the mother continued to bring all three children to the YWCA even when the boys indicated that they did not want to see the father. In addition, there is a November 12, 2019 YWCA report that indicates that the YWCA visits were terminated at that time due to the father’s failure to show up for several visits. The file also contains a report of an October 20, 2020 visit between the father and the youngest child (R.E.) that had to end early at the request of R.E. after she witnessed the father’s “aggressive and/or intimidating behavior” when he became “irate” at overhearing the mother talking on the phone. Following this incident, the YWCA notified the Court that all visits would thereafter be terminated after the father became “hostile with staff” and “bribed a security guard into writing a good report on his behalf.” Finally, the court record indicates that the father’s custody petition was dismissed on default on October 25, 2023 when the father failed to appear after telling his attorney that he has “moved on.”
It should be noted that the father continually stated that the children had no reason to fear him. However, a stay-away order of protection against the father on behalf of the mother and children was in place from May 5, 2018 through January 21, 2022 — for almost four years — following the mother’s filing of a family offense petition.
DISCUSSION
“It is fundamental public policy in New York that parents are responsible for their children’s support until age 21” (Rosenkrantz v. Rosenkrantz, 21 AD3d 716 [2d Dept 2023]; Matter of Kenneth H. v. Dawn P., 214 AD3d 731, [2d Dept 2023]; see Family Ct Act § 413; Matter of Shisgal v. Abels, 179 AD3d 1070 [2d Dept 2020]). “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and [parental access] may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment” (Matter of Shisgal v. Abels, 179 AD3d at 1072; see Matter of Roe v. Doe, 29 NY2d 188, 192-193, [1971]; Mitarotonda v. Mitarotonda, 171 AD3d 1040 [2d Dept 2019]). “[W]here it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her parental access rights, the child will not be deemed to have abandoned the parent” (see Matter of Kenneth H. v. Dawn P., 214 AD3d at 732; Matter of Barlow v. Barlow, 112 AD3d 817, [2d Dept 2013]). Such a breakdown in communication between a parent and a child may result from the parent’s “malfeasance, misconduct, neglect, or abuse” (Matter of Barlow v. Barlow, 112 AD3d 817 [2d Dep 2013]).Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated (see Matter of Barlow v. Barlow, 112 AD3d at 818). “The burden of proof as to emancipation is on the party asserting it” (Rosenkrantz v. Rosenkrantz, 21 AD3d at 717, Matter of Kenneth H. v. Dawn P., 214 AD3d at 732; see Matter of Shisgal v. Abels, 179 AD3d at 1072). In this case, the father has failed to meet his burden of demonstrating the children are constructively emancipated. As an initial matter, it must be noted that the youngest child, R.E., is only 7 years old and can hardly be said to be of “employable age” (see Saunders v. Aiello, 59 AD3d 1090 [2d Dept 2009]; Matter of Ryan v. Schmidt, 221 AD2d 449, 450 [2d Dept 1995]). With regard to the two elder children, the record demonstrates that it was the father who caused the breakdown of the relationship with the children through his own conduct toward the children and the mother, causing the children to justifiably discontinue the relationship (see Matter of Barlow v. Barlow, 112 AD3d 817 [2d Dept 2013]). Moreover, following the rupture, the father failed to demonstrate that he made serious or consistent efforts to contact his children in the years since the supervised visitation ceased (see Matter of Glen L.S. v. Deborah A.S., 89 AD3d [2d Dept 2011] (no constructive abandonment found where father made no serious effort to maintain his relationship with the children); see also Matter of Basile v. Wiggs, 156 AD3d 619, 621[2d Dept 2017] (father made no serious efforts to contact the child or exercise visitation); Radin v. Radin, 209 AD2d 396, [2d Dept 1994] (a few telephone calls cannot be construed as a serious attempt to maintain a relationship with a child). To the contrary, the uncontroverted testimony showed only lackluster and intermittent attempts by the father to connect with the children. Moreover, the father was unable to establish that the mother interfered with or hindered their relationship in any way. The record shows that she encouraged the children to maintain contact with the father and did not allow them to disparage him in her presence (see Saunders v. Aiello, 59 AD3d 1090 [2d Dept 2009]) (mother’s failure to encourage the relationship between the child and the father following a rift did not warrant discontinuance of support where her actions do “not rise to the level of `deliberate frustration’ of the non-custodial parent’s rights). Despite the mother’s encouragement, the children still chose of their own accord not to see the father. However, reluctance to see a parent is not abandonment, particularly where, as here, the children have a verifiable justification to support their decisions (see Matter of Glen L.S. v. Deborah A.S., 89 AD3d [2d Dept 2011]; Radin v. Radin, 209 AD2d 396, [2d Dept 1994]).
The record in this case is replete with evidence of the father’s refusal to take accountability for his own actions and their role in the destruction of his relationship with his children. Rather than putting forth any serious demonstration of his own efforts to keep in touch, to support or to develop any meaningful relationship with his children, the father repeatedly sought, without any evidence, to lay blame for the failure of his relationship elsewhere. The reports of the father’s inappropriate, aggressive and violent conduct, a dearth of any verifiable efforts on his part to connect with the children or repair the damage caused by his actions, and finally, his abandonment of the custody matter, demonstrate that the failure of his relationship with the children falls solely at his feet.[1]
ACCORDINGLY, IT IS HEREBY
ORDERED that the father’s modification petition is hereby dismissed with prejudice.
[1] The case of Thompson v. Thompson, 78 AD3d 845 (2d Dept 2011), repeatedly referenced by the father, does not require a different result as it is readily distinguishable. In that case, the Court found that the mother repeatedly interfered with the court-ordered visitation, disparaged the father and encouraged the estrangement. None of these elements was supported by the evidence in this case.”