Question/advise on emancipation in NY

[PaulG]

Hello,

I am in NY and have custody of my 19-year-old daughter – jurisdiction is NY... In short, on 9/01/04 she refused to come home and has not been back since. I begged her for days to come back home and she refused. She is now in the process of suing me for child support. We are due in court on Jan 6, 2005.

She claims on the petition that I asked her to leave the home. That is a lie. I have a witness to the day in question. She moved immediately into her boyfriend's home. She will not work. She expects 17% of my income to go directly to her. She was actually bragging to her boyfriend's family that she is going to get support from me.
 
My daughter's mother mailed our divorce decree to her in C/O her friend's house. The envelope is postmarked 2 weeks after my daughter's 18th birthday. There is a handwritten note attached to the papers that says, "Here are the papers you asked for, Hope all goes well. If you have any questions call me, Love Mommy" My ex highlighted the emancipation rules and my life insurance policy info. My daughter admitted she had her mother send the papers to her friend's house because she didn't want me to see them... My ex admitted to me that my daughter was unhappy living with me (she thought since she was now 18, she should have no curfew and I disagreed) and that they contacted a lawyer to see if I would be forced to support my daughter if she moved out. This was all done a year ago. I still have the envelope and everything that was in it.

My ex has stopped making her monthly child support payments to SCU. Her last payment was for Aug. She is now in arrears for three months – it will be four when we go to court. Yet on the petition, my daughter states that I am receiving this money and keeping it for myself. I have proof that no checks were sent to SCU. If I am not receiving this money how can I be keeping it??? As far as I can tell, my daughter and ex are trying to scam the courts. They have been scheming this for a year now. I never threw my daughter out, and I never kept money that I was not entitled to.
 
The petition also states that my daughter is living with "a friend". She is not. She is living with her lover. I think that's a big difference.

Since my daughter moved out of my home she has moved to a new address and never told me. I found that out only because I was reduced to sending my daughter registered/certified mail – because she will not return my calls, and it came back with a new address because it was forwarded to her new one. She has totally abandoned me.
 
My daughter's boyfriend has since thrown her out, after living with her for three months, because she refused to get a job or go to her college classes. Her mother told her that working would "hurt her case". Now that her boyfriend threw her out, my X flew in to NY to bring her back to CA. Now my daughter says that she's moving to CA "to go to school". Yeah right – my daughter has a GPA of 1.6 because she doesn't go to class, hand in papers or take exams.
 
Now today I am served with a third petition. This one is my X suing me for custody. She claims in the petition that I am verbally abusive (NO witnesses to that!) and that I threw my daughter out and that our daughter have since been living from place to place with friends and relatives. LIES. She's been with her boyfriend the whole time!

My questions are: (1) how is a 19 year old deemed emancipated in NY? (2) Should jurisdiction stay in NY or be changed to CA? I saw that in CA, CS ends at 18. (3) If my daughter emancipated herself, can she un-emancipate herself? (4) If my daughter moves to CA and I am told to pay CS, how do I know that she is still entitled to it? – Neither her or my X will tell me if she emancipates herself, as they are both con artists. Do I have any protection for this? (5) Are people allowed to lie, without any penalty, on a petition that they file? (6) Can one parent sue for custody of an emancipated 19 yr old and receive CS? (7) My daughter will be in CA on the court date. Is she allowed to just decide to do it over the phone?

Sorry for such a long post...
PaulG

[socrateaser]

>My questions are: (1) how is a 19 year old deemed emancipated
>in NY?


Before getting to your question, just let me mention that your post says you were served with three petitions, however, I only read facts concerning two. If this is not correct, then you need to tell me the rest of the story. Now then...

From MATTER ALICE C. v. BERNARD G. C., 602 N.Y.S.2d 623 (09/27/93):


"Despite the fact that parents have a continuing obligation to support their children until they reach the age of 21 years, it is beyond cavil that emancipation of the child suspends the parent's support obligation. Children are emancipated if they become economically independent of their parents through employment, entry into military service, or marriage, and may also be deemed constructively emancipated if, without cause, they withdraw from parental control and supervision (see, Besharov, Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 413, at 70; see also, Matter of Roe v Doe, supra)."

Under NY law, and as your daughter is 19, she is entitled to support if she remains economically dependent on her parents, until she reaches the age of 21 years. Your facts disclose that she refuses to work or go to school. This indicates an even stronger case for your child not being emancipated under NY law, and consequently, to your remaining subject to support. Also, NY law merely "suspends" the support obligation, so even if your child may have been emancipated for the time that she lived with her boyfriend, the fact that she's been thrown out and is now living with her mom, is evidence that argues that your daughter is entitled to child support. Therefore, you are subject to pay child support.

(2) Should jurisdiction stay in NY or be changed to CA?

With regards to child support, NY retains continuing, exclusive jurisdiction to determine your support obligation, UNLESS both parents consent by filing notice in the NY court of their agreement to allow CA jurisdiction for determination of your support obligation.

Regarding custody, the rule is similar, except that the law permits the NY court some discretion to relinquish jurisdiction if it believes that no significant connection to NY remains, and there is insufficient evidence within the NY jurisdiction to make a custody determination.

This creates a rather interesting legal question, that has never been considered in a CA court. If you could convince your daughter and your ex to withdraw there petitions on the condition that you will accept jurisdiction for both custody and support in CA, then you could just dodge the bullet entirely. Because, as you mentioned, CA child support terminates at 18 and graduated HS, or 19 whichever occurs first. And custody and support in CA terminate simultaneously, i.e., emancipation occurs at the same instant that support terminates.

So, if your daughter and ex were to bring their petitions in a CA court, they would both be dismissed as failing to state a claim for which relief may be granted. But, as they are bringing the actions in NY, you are still subject to NY law, so you will have to pay support even though your daughter and her mother live in CA.

You could try a "hail mary," and offer to litigate both the support and custody matters in CA, if your ex and daughter agree to sign consent forms stating that they agree to a change of jurisdiction from NY to CA. And, if they're stupid enough to fall for this, then you'd be off the hook, because, as I just pointed out, a CA court would be forced to dismiss the actions as without subject matter jurisdiction.

But, from the facts that you've posted, frankly, it appears that maybe even the "boyfriend" is in on the con, because it's all too convenient that your daughter is on the streets and in CA -- this being the best way to show that she's not emancipated and drag some dough out of you.

Don't cha just love your state legislators for doing this to you?

(3) If my daughter emancipated herself, can she un-emancipate herself?

Yep. See #1, above.

(4) If my daughter moves to CA and I am told to pay CS, how do I know
>that she is still entitled to it? – Neither her or my X will
>tell me if she emancipates herself, as they are both con
>artists. Do I have any protection for this?

Nope!

(5) Are people allowed to lie, without any penalty, on a petition that they file?

Nope, but you have to prove the lie, or it will be presumed to be true.

(6) Can one parent sue for custody of an emancipated 19
>yr old and receive CS?

Yes sir, because under NY law, your child is NOT emancipated, based on the facts that you've posted.

(7) My daughter will be in CA on the court date. Is she allowed to just decide to do it over the >phone?

I don't know. That's entirely up to the judge. I would argue that your daughter needs to be physically present for cross-examination, because much depends on her believabilility and that is not as easy to determine from a phone conversation.

[PaulG]

>Before getting to your question, just let me mention that your
>post says you were served with three petitions, however, I
>only read facts concerning two. If this is not correct, then
>you need to tell me the rest of the story.

My daughter filed one petition stating that her mother is sending her child support payment to SCU and that I am keeping them for myself. I have proof that is a lie (I have hard copies from SCU stating my X's last payment was for August and that she is in arrears). In this petition, my daughter is asking for her mother's CS payments be sent directly to her.

The second petition my daughter filed is for me to pay her CS.

>(5) Are people allowed to lie, without any penalty, on a
>petition that they file?
>
>Nope, but you have to prove the lie, or it will be presumed to
>be true.

What are the penalties for lying? I have proof in my hands and witnesses that what was written on the three petitions are lies.

Also, in re to my Xs petition - the third one, she claims she can give my daughter a safe home. That is untrue.

The neighbors directly next to her home are extremely abusive to everyone in my Xs home. They make sexual remarks, moo at my X every time she walks out of the house, and they damage her property. The police were there many times. In fact, when my daughter was visiting her mother, the police were called. After my daughter came home from her visit, CA detectives were calling my home looking for my daughter for her statements because she was a witness to the abuse... I really do not think that is a "safe" environment.

My daughter was born and raised in NY. My X met a man on-line. Two years ago. My X quit her job, sold the house, flew to CA and moved directly in with this man. The courts gave my X permission to take my daughter, because my daughter said she wanted to go. OK... Two weeks later, my daughter calls me up crying that she doesn't want to live with her mother and this guy. We all spoke about it. My X put our daughter on a plane back to NY. My daughter arrived in NY around midnight - thee night before her first day of her senior year in HS. I was granted custody.

This is my X's fourth husband. He is also her second Internet husband. The first Internet husband turned out to be into teen-porn... My X didn't find this info out until after she married. But then again, she only knew the guy for three months...She eventually divorced him. So, my X is not stable.

MY X also claims in her petition that our daughter has been "living from place to place with friends and relatives". That's a lie.

My daughter moved out of my home on 9/1/04 and the week of 9/14/04 she went to the post office and had her address changed to her boyfriend's address. I have the paper from the PO stating that she changed her address. She also changed her address to her boyfriend's at her college. My daughter and her boyfriend moved to another address (I have proof from the PO of that address too). That is the address my X used for my daughter on her petition for custody. So there was never any "living from place to place". My daughter has been with her boyfriend the whole time.

Plus, if my daughter were living place to place, like her mother wants the courts to believe, why did her mother take from 9/1/04 to 12/15/04 to get her out of that situation (My X was in NY the week of 9/14/04, she should have taken her then)...??? Because it's a LIE!

This all started because I found drugs in my daughter's room. She refused to come home to discuss it. All my daughter had to do was come home to talk. She moved right into her boyfriend's home.

In regards to my daughter being economically dependant on her parents, she had a job that was giving her 40 hrs a week. She quit it because "they were giving her too many hours".... She applied to another job, had to take a drug screening test. She claims she got the job, but turned it down "because they wouldn't work around her college schedule". The job was for Best Buy. They DO work around college schedules... She just doesn't want to work. She wants to sleep all day and party all night.

Is there any hope? If I have to pay 17% of my income, my daughter or X will be getting more than 1/2 of my take-home pay. I will lose my house. My X just remarried and bought a $500,000 home. I live in a $75,000 home. Not because I want to, but because I have to.

Thank you for helping,

Paul

[PaulG]

Can I relinquish my parental rights? I can no longer trust my daughter, emotionally or physically. As per my daughter's request, my X mailed her our divorce decree to her (to a friend's address – and which I have in my possession) with the emancipation rules highlighted. That is my daughter's little "cheat-sheet" on getting CS without emancipating herself.... My X also highlighted in the decree that fact that I am worth $100,000 to my daughter if I'm dead. My death will be my daughter's safety net for getting money out of me. So, I cannot trust either of them with my emotions or with my life.

[socrateaser]

First, you need to get the issue of lying out of your head. In court, EVERYONE LIES! The question for the court is ALWAYS: Is the lie offered as evidence that tends to prove or disprove a material fact at issue before the court? In other words, is the lie relevant (material falsification)?

If the lie is a material falsification, then you could move for contempt and ask for sanctions made payable to you. You can also use the lie to show that the witness/party has a habit of lying, and therefore, that his/her testimony should be considered suspect, generally.

But, the court will not alter the outcome of an issue before it, such as child support, simply because the other party is lying, unless the lies go to the facts and the facts will cause a finding in your favor as to the issue, which is, emancipation.

Frankly, based on your facts, emancipation is the threshold issue, because if your daughter is emancipated then custody is irrelevant and child support will not be ordered, otherwise custody and support are fair issues and the court will be forced to rule on them. Now, let's look at your facts...

>My daughter filed one petition stating that her mother is
>sending her child support payment to SCU and that I am keeping
>them for myself. I have proof that is a lie (I have hard
>copies from SCU stating my X's last payment was for August and
>that she is in arrears). In this petition, my daughter is
>asking for her mother's CS payments be sent directly to her.

If you can prove that your ex didn't pay support for which she was legally obligated, then you will be awarded a judgment of arrears, and she will have to pay. This amount may be credited against any amount that you might be ordered to pay, should a support order be entered against you. And that is ALL there is to discuss about this issue. The fact that your ex might be lying is pretty much irrelevant, in and of itself.


>Also, in re to my Xs petition - the third one, she claims she
>can give my daughter a safe home. That is untrue.

The threshold issue for custody (other than emancipation) is whether there has been a substantial change in circumstances affecting the child's best interests. If there has, then custody changes can be made. If not, then no custody change can be made.

The fact that your ex can give your daughter a safe home is irrelevant. The relevant question is: Is your home UNSAFE? If it's not, then there is no substantial change in circumstances affecting the child's best interests, and no reason to change custody. So, proving your ex's home is unsafe is a waste of your energy and the court's time. Don't go there.

>This is my X's fourth husband. He is also her second Internet
>husband. The first Internet husband turned out to be into
>teen-porn... My X didn't find this info out until after she
>married. But then again, she only knew the guy for three
>months...She eventually divorced him. So, my X is not stable.

Once again, the fact that your ex may be unstable is largely irrelevant. What matters is whether or not YOU are stable, because YOU are the custodial parent. As long as you are stable, then the court cannot change custody because there is no substantial change in circumstances.

>
>MY X also claims in her petition that our daughter has been
>"living from place to place with friends and relatives".
>That's a lie.

This is actually in your FAVOR, because it leads to the conclusion that your child has actively sought to break her dependence on you, so GET OVER THE LYING, because you may be able to use some of it to your advantage. Your PRIMARY goal is to prove that your daughter is emancipated. If you succeed -- game over -- you win all the marbles.

If your ex lies, and the lie acts to improve your case, then you want the court to treat the lie as the truth. And, people are presumed to tell the truth in court, until they are found lying, so don't go fighting a lie that helps your case just because it's a lie, because that is just plain DUMB!

Court is not about the truth -- it's not about right or wrong -- it's about one thing and one thing only: W I N N I N G ! ! !

"To the winners go the spoils" -- Anonymous

>This all started because I found drugs in my daughter's room.
>She refused to come home to discuss it. All my daughter had to
>do was come home to talk. She moved right into her boyfriend's
>home.

This could be relevant to show that your daughter deliberately broke away from your control and custody. The fact that drugs are involved is not especially material, and it could demonstrate that you are not a very good custodian, so I'd be careful about advancing this theory.

>In regards to my daughter being economically dependant on her
>parents, she had a job that was giving her 40 hrs a week. She
>quit it because "they were giving her too many hours".... She
>applied to another job, had to take a drug screening test. She
>claims she got the job, but turned it down "because they
>wouldn't work around her college schedule". The job was for
>Best Buy. They DO work around college schedules... She just
>doesn't want to work. She wants to sleep all day and party all
>night.

This is better stuff. You need your subpoena your daughter to bring all of her work records, and you need to get her to name all of her employers, then, if there are employers who she does not bring work records for, you can ask for a continuance and ask the court to permit you to subpoena the various employers that your daughter does not have records for, so that you can ascertain a clearer picture of her work record and employability.

Remember, your ONLY goal is to (1) show that your daughter is capable of supporting herself, and (2) that she has affirmatively resisted any control asserted by you as her custodian.

If the court finds either of these circumstances exist, then you WIN. Nothing else matters.

>My X just remarried and bought a $500,000 home. I live in a $75,000 home. Not because I want to, but because I have to.

A $500,000 home in CA can be a 1,200 sq ft. 3 bdrm, 2 bth, built in 1958. I recommend strongly that you do not emphasize the value of the home, unless the issue of need arises in regards to an award of equitable attorney fees against you. And, even then, unless the home has a huge amount of net equity that can be borrowed against, you'll be wasting your time.

Pleading poverty is mostly a waste of time in a child support hearing, because the court MUST award support based on your actual income or earning capacity, and you have already admitted that you have actual income and earning capacity.

You need to concentrate on showing that your daughter is emancipated. If you can't do this, you will be paying support. PERIOD. So, clear your mind and prepare for battle.

[socrateaser]

>Can I relinquish my parental rights?

No. Forget about it. Don't even bring it up, because the court will view you as trying to escape your support obligation and that is the FASTEST way to lose a support hearing. You could offer no worse testimony than your desire to disconnect yourself permanently from the situation.

You need to focus on the exact opposite, i.e., how much you care about your daughter's welfare. That makes you the preferred custodian, and even if your daughter is shown to be unemancipated, she will be ordered back into your custody, which means no child support.

I hope you're getting it. BTW, you need a lawyer.

[PaulG]

>The fact that your ex can give your daughter a safe home is
>irrelevant. The relevant question is: Is your home UNSAFE? If
>it's not, then there is no substantial change in circumstances
>affecting the child's best interests, and no reason to change
>custody. So, proving your ex's home is unsafe is a waste of
>your energy and the court's time. Don't go there.


>Once again, the fact that your ex may be unstable is largely
>irrelevant. What matters is whether or not YOU are stable,
>because YOU are the custodial parent. As long as you are
>stable, then the court cannot change custody because there is
>no substantial change in circumstances.

Ok... My daughter is 19 years old... Can my daughter decide that she wants to live with her mother? What if my daughter tells the courts that she doesn't want me to have custody of her, that she wants her mom to have custody? Will the courts grant my X custody?

[socrateaser]

>Ok... My daughter is 19 years old... Can my daughter decide
>that she wants to live with her mother? What if my daughter
>tells the courts that she doesn't want me to have custody of
>her, that she wants her mom to have custody? Will the courts
>grant my X custody?

The court will give your daughter's wishes substantial weight, but that is not the whole story. The question is whether she will actually be within the custody of either of you.

You need to try to show that this arrangement with her mother is intended to make it appear that your daughther cannot support herself, and that the reality is that your ex has coerced your daughter into living with her for the sole purpose of punishing you.

This is a delecate manuver, because you can't make it appear that you are just crying sour grapes, otherwise it will blow up in your face. You need to disect the pleadings and use their words against them. Just don't cry poverty, because that will kill you.

[PaulG]

>Before getting to your question, just let me mention that your
>post says you were served with three petitions, however, I
>only read facts concerning two. If this is not correct, then
>you need to tell me the rest of the story.

My daughter filed one petition stating that her mother is sending her child support payment to SCU and that I am keeping them for myself. I have proof that is a lie (I have hard copies from SCU stating my X's last payment was for August and that she is in arrears). In this petition, my daughter is asking for her mother's CS payments be sent directly to her.

The second petition my daughter filed is for me to pay her CS.

>(5) Are people allowed to lie, without any penalty, on a
>petition that they file?
>
>Nope, but you have to prove the lie, or it will be presumed to
>be true.

What are the penalties for lying? I have proof in my hands and witnesses that what was written on the three petitions are lies.

Also, in re to my Xs petition - the third one, she claims she can give my daughter a safe home. That is untrue.

The neighbors directly next to her home are extremely abusive to everyone in my Xs home. They make sexual remarks, moo at my X every time she walks out of the house, and they damage her property. The police were there many times. In fact, when my daughter was visiting her mother, the police were called. After my daughter came home from her visit, CA detectives were calling my home looking for my daughter for her statements because she was a witness to the abuse... I really do not think that is a "safe" environment.

My daughter was born and raised in NY. My X met a man on-line. Two years ago. My X quit her job, sold the house, flew to CA and moved directly in with this man. The courts gave my X permission to take my daughter, because my daughter said she wanted to go. OK... Two weeks later, my daughter calls me up crying that she doesn't want to live with her mother and this guy. We all spoke about it. My X put our daughter on a plane back to NY. My daughter arrived in NY around midnight - thee night before her first day of her senior year in HS. I was granted custody.

This is my X's fourth husband. He is also her second Internet husband. The first Internet husband turned out to be into teen-porn... My X didn't find this info out until after she married. But then again, she only knew the guy for three months...She eventually divorced him. So, my X is not stable.

MY X also claims in her petition that our daughter has been "living from place to place with friends and relatives". That's a lie.

My daughter moved out of my home on 9/1/04 and the week of 9/14/04 she went to the post office and had her address changed to her boyfriend's address. I have the paper from the PO stating that she changed her address. She also changed her address to her boyfriend's at her college. My daughter and her boyfriend moved to another address (I have proof from the PO of that address too). That is the address my X used for my daughter on her petition for custody. So there was never any "living from place to place". My daughter has been with her boyfriend the whole time.

Plus, if my daughter were living place to place, like her mother wants the courts to believe, why did her mother take from 9/1/04 to 12/15/04 to get her out of that situation (My X was in NY the week of 9/14/04, she should have taken her then)...??? Because it's a LIE!

This all started because I found drugs in my daughter's room. She refused to come home to discuss it. All my daughter had to do was come home to talk. She moved right into her boyfriend's home.

In regards to my daughter being economically dependant on her parents, she had a job that was giving her 40 hrs a week. She quit it because "they were giving her too many hours".... She applied to another job, had to take a drug screening test. She claims she got the job, but turned it down "because they wouldn't work around her college schedule". The job was for Best Buy. They DO work around college schedules... She just doesn't want to work. She wants to sleep all day and party all night.

Is there any hope? If I have to pay 17% of my income, my daughter or X will be getting more than 1/2 of my take-home pay. I will lose my house. My X just remarried and bought a $500,000 home. I live in a $75,000 home. Not because I want to, but because I have to.

Thank you for helping,

Paul

[PaulG]

Can I relinquish my parental rights? I can no longer trust my daughter, emotionally or physically. As per my daughter's request, my X mailed her our divorce decree to her (to a friend's address – and which I have in my possession) with the emancipation rules highlighted. That is my daughter's little "cheat-sheet" on getting CS without emancipating herself.... My X also highlighted in the decree that fact that I am worth $100,000 to my daughter if I'm dead. My death will be my daughter's safety net for getting money out of me. So, I cannot trust either of them with my emotions or with my life.