Child Support Bullet Guide (Part 2): Paternity, Constructive Emancipation and Equitable Estoppel
As a divorce mediator, divorce attorney and family law lawyer, Mr. Darren Shapiro frequently works with clients on a wide range of cases. When possible, Mr. Shapiro updates this website with blogs, articles, and other resources that people considering divorce or family law procedures might find helpful. This site has built up a large selection of articles over the years, but there is a lot here to sort through all the information available to find what you need.
That’s why Mr. Shapiro has created these bullet point guides, to assist you in finding easy-to-consume information fast. This section of the child support guide addresses constructive emancipation, and the impact it has on child support cases. This article will also discuss equitable estoppel, and the concept of paternity in family law.Constructive Emancipation and Child Support
In the region of New York, parents are required to support their children until they reach the age of 21, or they are emancipated in the eyes of the law. Constructive emancipation is based on case law that family attorneys may need to consider when addressing the amounts parents may need to pay according to the Child Support Standards act:
- Children in New York may be emancipated when they join the military or get married, they can also be declared emancipated when they are of an employable age and get a job that makes them economically independent. In some cases, a child may be emancipated when he or she voluntarily leaves the family home.
- A child achieves economic independence when they can support themselves with full-time work. It’s important to determine that the child is generating the correct amount of income to live without the assistance of a parent for important items like food, insurance, or utilities.
- Cases of abandonment may be tricky. They are often quite subjective, and the courts may hold that a parent’s right to custody, and a child’s right to support are linked. Courts will need to assess the reason the child left the family home. Was it with good cause or without good cause?
- Rules of constructive emancipation are applicable to parents without custody when a child refuses all contact and visitation without good reason. If the child has abandoned the non-custodial parent and refuses to have a relationship with them without good cause, this could be a reason for constructive emancipation. The courts will need to consider the reasons why the relationship between the parent and child broke down.
- It’s possible for the doctrine of constructive emancipation to appear when defending a new case for child support, or when requesting to terminate a prior support order. The request for a termination is a considered a modification, and parties must demonstrate substantial changes in circumstances to allow for the change.
In cases of New York Child Support, paternity is a legal declaration indicating who is the father of a child. Legal paternity recognition is essential for many obligations and rights regarding parenting time, child support, and custody.
- Since New York recognizes same-sex marriage, the legal definition of paternity is still an issue in development for these couples. There are circumstances where complications arise in a situation where a couple is not married, but they share a child.
- The law assumes that a married man is the father of a child that his wife delivers, unless information is provided to show otherwise. If another man files a legal case to claim paternity, the presumed father will need to be given notice of the case.
- Unmarried couples can establish paternity when both parents contribute sign a document acknowledging paternity. Recorded paternity documents can be the equivalent of orders of filiation. Either party can request to vacate the acknowledgement within 60 days of signing.
- Establishing legal paternity for parents that don’t have paternity acknowledgements or a presumption that comes from marriage can be complicated. A specific petition is required, and DNA or genetic tests may be necessary.
- Following the establishment of paternity in a family law case, the courts will inquire whether a child support order is requested. If a request is launched, the case will then become a child support case. It’s important to establish paternity before covering support and visitation issues.
The New York family law indicates that it is possible to initiate paternity proceedings at any time from the moment the mother knows she is pregnant, to the point where the child reaches 21 years of age. If a requested is made for DNA testing, the court will only order this test if it is in the best interests of the child.
- The court may prevent the genetic testing or DNA testing of a child in some family law cases with Equitable Estoppel. This indicates it wouldn’t be fair to hold a test against a person who has provided support, food, parenting child, and the other elements expected of a father.
- Estoppel can be applied to prevent DNA tests requested by potential mothers, fathers, or someone else with an interest in the case. It may also be applied to stop a DNA test from a man claiming to be the biological father when he has allowed someone else to stand as the estoppel father for the child.
- In all cases of family law involving children, findings and requests to use equitable estoppel need to be seen as being in the best interests of the children. This solution ensures that rights cannot be enforced against a person when actions may lead to injustice.
- It is not enough for people to simply claim estoppel in a family law case. These individuals must be able to show evidence that the court can access to show that estoppel is relevant to the case. Some factors that may be addressed include the importance of a child knowing who their parents are biologically, and the trauma that may be caused by this knowledge (for example if the person he/she/they always thought was there was actually is not).
If you have any questions about the issues here, or you’d like to discuss your case associated with paternity and family law, please fee free to explore the other articles on this website, or contact Mr. Shapiro’s office to get on the calendar at an available time for your free initial consultation of which up the first thirty minutes is free. You can reach out via our contact form, or at (516) 333-6555.