Matter of T.M-H. v D.L.H.

[*1] Matter of T.M-H. v D.L.H. 2010 NY Slip Op 52375(U) Decided on December 21, 2010 Family Court, Nassau County Bennett, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2010
Family Court, Nassau County

In the Matter of a Proceeding Under Article 4 of the Family Court Act T.M-H., Petitioner,

against

D.L.H., Respondent.



F-xxxxx-08



Donna McCabe, Esq. Attorney for Petitioner

Howard Knispel, Esq. Attorney for Respondent

Stacy D. Bennett, J.

Procedural History

On July 9, 2008, the Petitioner-daughter, T. M-H, (hereinafter "T" or "the Daughter" or "the child") born June 14, 1990, filed a petition before this Court requesting that the Respondent-Mother, D. H. (hereinafter "D" or "the Mother") provide for her support. On August 8, 2008, the matter was referred to this Court by Support Magistrate Kahlon for determination regarding the issue of constructive emancipation.

On September 2, 2008, the Mother filed a motion to dismiss the Daughter's support petition for two reasons. First, on the grounds of constructive emancipation, alleging that the Daughter has abandoned the Mother's home in Arizona to avoid parental control and that she has refused contact or to have a relationship with her. Second, the Mother argued that Arizona is the "home state" of her daughter and as such, she is emancipated pursuant to Arizona State law, which provides that a child over the age of 18 years is not entitled to child support.

By decision dated December 1, 2008 this Court found that questions of fact existed and therefore denied the motion, and referred the matter to a hearing.

Findings of Fact [*2]

The hearing was held on: May 15, 2009, August 6, 2009, February 9, 2010, April 5, 2010, July 7, 2010 and July 8, 2010.The Court granted the Mother's request to appear telephonically and was represented by Howard Knispel, Esq. The Daughter appeared in person and was appointed 18-b counsel, Donna McCabe, Esq. The Mother requested that she be permitted to appear telephonically, claiming that it was a financial hardship for her to appear before the Court. Without objection from the Daughter, this Court granted the Mother's application.

As the Mother asserted constructive emancipation as a defense to the entry of a support order, she presented her case in chief first. The Mother testified as her first witness and, again, she testified telephonically.The Mother argued that her Daughter totally abandoned the Mother-Daughter relationship, and as a result, she should not be obligated to pay for her support.

By way of background, the Mother testified that she was 19 years old when her Daughter was born. She stated that T 's biological father is R. G. At that time she was attending college and residing with her parents in East Meadow. She stated that three months after T was born, she consented to her father (T. M.) being awarded guardianship over her Daughter so that T "could go on his medical, his health insurance so (she) wouldn't have to work and go to school at the same time."The Order Appointing Guardian of the Person dated September 6, 1990 was admitted into evidence as Respondent's exhibit "A."

The Mother continued to reside with her parents on S Street in East Meadow for the first four years after T was born. Thereafter, the Mother and the child moved into a two bedroom apartment in East Massapequa, with R.H., the Mother's current spouse and T's step-father. They resided there for a short time until they moved into a home which was purchased for D by her parents on L Street in East Meadow, a few blocks away from her parent's home. They resided there for approximately nine years. During that period of time, in 2000, the Mother married R. H. She testified that T and her husband did not get along and discussed briefly an "incident" in May, 2004, which resulted in T moving back to her grandparent's home.

In October, 2004, the Mother sold the home on L Street and moved to Arizona, with her husband. She stated she moved to Arizona because, "New York was too expensive," it "was 2500 miles away from my parents," and that she wanted to get away from her mother and father.The Mother testified that when she first advised T of her plans to move to Arizona, T was willing to go, but later refused to relocate with her Mother and her husband, stating that T told her that she "hated her and her husband." Despite T's refusal to go, the Mother and her husband moved to Arizona in October, 2004.T, fourteen years old at that time, remained in the custody and care of her maternal grandparents in East Meadow.The Mother told the Court that she did not pay child support for T because "nobody asked," and she therefore did not offer.

The Mother stated that she never sought to revoke the Order of Guardianship or take physical custody of T.

In February, 2005 (four months after the Mother moved to Arizona) T moved to Arizona and resided in an apartment in Gilbert, Arizona, with her Mother and her husband until construction on her Mother's home in Buckeye was complete. The Mother testified that while in Arizona, T gave her "trouble" at home and in school. For example, the Mother stated that T refused to obey the household rules, and was "defiant." She stated that T was cutting classes, cursing at home and in school and was using drugs and drinking alcohol. [*3]

As a result of her "bad" behavior, the Mother removed T's privileges, including the use of the home phones, cellular telephones, computers, internet access, and social functions. The Mother explained that as a result of such discipline, in December, 2006, T left the house for the first time (of which there were three such incidents.) The Mother called the school and the authorities resulting in T returning home later that same evening.

T left her Mother's home for the second time in Arizona on December 26, 2006. She stated that T left in the night, without any discussion as to why she was leaving and where she was going. The Mother called the police and filed a report with the Buckeye Police Department. She located T in early January, when the school advised the Mother that she was in attendance. She attempted to enroll in therapy with her Daughter, but T refused.

The Mother testified that the third time T "ran away" was on January 12, 2007. She stated that her Daughter never told her of her plans to leave, she left during the night while she was sleeping and the Mother had no idea where she was or with whom she was residing. As a result, the Mother called the police and filed a report. She later learned that T had returned to her grandparent's home in New York, where T now lives.

The Mother stated that she continues to reside in Arizona and has lived there since October, 2004. The Mother explained that she never told her Daughter to leave and despite T's "bad" behavior, she loves her Daughter and she is "welcome to come home whenever she wants and she has always been since she left January 12." The Mother does not dispute the fact that T has been residing in New York for a continuos period since January, 2007.

The Mother stated that she has not spoken to her Daughter since she left Arizona in January, 2007, although she sent her cards and letters with no response.

At the conclusion of the Mother's testimony, she rested.

The Petitioner called the following four witnesses during her direct case: Thomas M., Diana M., T. M-H, and D. H.

Thomas M. is the father of the Respondent-Mother, and T's maternal grandfather. Thomas M. testified that in 1990, when T was first born, she and D resided with him, his wife, and son on S Street in East Meadow. He stated that one month after T was born, he applied for and received legal guardianship over T at the Nassau County Family Court. He stated the primary reason for the guardianship order was to provide T with health insurance, since her Mother was only 19 years old, unemployed and attending school.

Thereafter, in 1996 he purchased a home for his daughter and T a few blocks away on L Street. He paid the mortgage on the property and when the house was later sold, he shared the profits with his daughter, D.

In April, 2004, prior to the sale of the L Street home, he recalled an argument between T and the Mother's husband, R.H., which resulted in T moving back into his home. He recalled D telling him that "she didn't want T home anyway, and that it was quiet in the house."

In October, 2004, six months after T came to live with him, D and her husband moved to Arizona, withoutT. Mr. M testified that D did not advise or communicate with him in advance of the move, and D did not make a plan regarding the care or custody of T. D did not offer to pay child support for T and did not even "say goodbye" to him, or her child before she moved. He stated that D never sought to revoke, rescind, modify or remove the Order of Guardianship. He further stated that he has always paid for T 's necessaries. He testified that he has paid for [*4]camps, tutors and horse back riding lessons as well.

Mr. M testified that three months after D moved to Arizona (January, 2005) she came to New York for a family funeral. At that time, he spoke with her about reconciling with T. The family agreed that T would move to Arizona with D. In February, 2005, Mr. M paid for T's plane ticket to Arizona. T remained in Arizona until January, 2007, when she returned to New York to reside with the maternal grandparents. T completed her high school education in the East Meadow School District.

Mr. M stated that since T moved back to New York, (a 2 ½ year period) he has not communicated with D about T's well being and D did not attend T's High School graduation. He testified that T has resided with him since January, 2007, is attending Nassau Community College, and has a part-time job. He pays for all of her expenses including food, clothing, housing, her automobile, her automobile insurance and a trip to Europe. D has never offered to reimburse him for any of T's expenses. He stated T does not cause any "trouble" and that his relationship with T is "very good." He has no relationship with his daughter, D.

D's attorney sought to offer the police report from Buckeye, Arizona during cross-examination of Mr. M. However, since he was not present and did not file said report, such request was denied.

Petitioner's second witness was Diana M., the Maternal Grandmother of T and mother of D. She resides in East Meadow with her husband, Thomas M.

Mrs. M confirmed the testimony of her husband, stating that her daughter and T lived with her during the first few years after T was born. Thereafter, in 1996, she and her husband purchased a home in East Meadow for D and T a few blocks away, on L Street. She stated that although T moved to the L Street house, she spent almost every day after school with her and acted as the primary child care provider for T until her Mother returned home from school or work.

She testified that in April, 2004, (when T was 14 years old) after an argument with her step-father, T returned to live with her and her husband.She testified about the discussions she had with D regarding the argument between T and her step-father and recalled D telling her, "until T apologized to her step-father for starting the or fighting with him, she wasn't welcome back in the house." She recalled a call from D telling her to "come get T's things or she was going to throw them out to the curb." Mrs. M attempted to arrange a reconciliation between T and D by scheduling counseling appointments, which were unsuccessful.

Sometime between August and September, 2004, D advised Mrs. M of her plans to sell her home and move to Arizona. Mrs. M testified that D did not come to see T before she moved in October, 2004.

The next time Mrs. M saw D was at her mother's funeral in January, 2005. At that time, the parties discussed the possibility of T moving to Arizona to live with her Mother. Although she wanted T to be with her mother, Mrs. M had reservations and concerns about T's well being, stating that they were always fighting and she believed they did not have a good, healthy relationship.

After T moved to Arizona in February, 2005, Mrs. M received numerous emails from T complaining about her "situation in the house" and how "she hated it in Arizona and wanted to come back to New York." She also received emails from D detailing T's behavior and describing [*5]how T was missing school, cutting classing and using drugs and alcohol. She encouraged T and D to work out their differences. In December, 2006, she agreed to send T a plane ticket to come back to New York after T told her she was planning to leave D's home to live in a cabin in the Colorado mountains. On January 14, 2007 T. returned to her grandparents in New York, where she remains.

Since her return to New York, Mrs. M testified that T's behavior has been difficult at times stating "she's a teenager, she's very headstrong, like her mother. We had a lot of arguments also, but she usually came around when she calmed down." Despite such difficulties, she stated that T has never run away from her home.

Mrs. M testified, like her husband, that they pay for her car, her car insurance, her housing, her food and the majority of her needs. T uses her income from her part time job as a paralegal to pay for her clothing. She stated T's college tuition is fully paid by scholarships (the PELL grant and the TAP awards).

The Petitioner's third witness was T. M-H. T testified that she lived with her grandparents in East Meadow until she was about 7 years old when she moved into a house on L Street with her Mother and step- father, R.H.

She first met her step-father in 1994, when she was four years old. Her mother married Mr. H six years later. After the move, she continued to maintain daily contact with her grandparents, who cared for her from after school until her Mother picked her up.

T testified that her biological father is R.G. and although they are not close, they are on "speaking terms."

Regarding her relationship with her step-father, she testified that during her early years, he was like a "playmate" to her, but later on during her teen years, their relationship worsened. She stated that, at times, he was physically abusive and that he was verbally abusive on a daily basis. When asked specifically about the physical abuse she stated, "he has on a few occasions put his hands on me and caused me pain and it was just unwanted behavior." She described in detail a "fight" she had with her step-father in 2004 which resulted in her return to her grandparents house. She stated it was past her curfew and her step-father came to her friend's house and physically forced her into his car. She stated:

when I refused to get in the car he made me by physically putting his hand around my neck and aiming my head and body toward the car and trying to push me into the car. And my friend's brother had to come and break the fight up between me and him. He had to pull my step father off of me, then I ran down the block to my grandparent's house. They lived about ten, 15 houses away, And they saw that I was beet red. I had prints on me from where he physically touched me. I was hysterical.

She further testified that when she explained what had occurred to her Mother, she refused to believe T and instead believed her husband's version of the events which took place. T stated that her Mother was angry with her and told her "don't come home tonight" and further told her "if you guys can't get along, don't bother coming home to my house." Her Mother asked T to apologize to her step-father and when T refused, she put all of her belongings in a garbage bag and told her to "get out immediately."

T was willing to attend therapy with her Mother alone but her Mother refused to go [*6]unless her husband was present for the sessions.

Regarding her birth certificate, she testified that originally, her name was listed as T. M-G. Her current birth certificate states her names as T. M. M-H and lists her father as "R. H."

T testified that her Mother told her that she changed her birth certificate because "she didn't have a father."

T first learned of her Mother's intent to move to Arizona in October, 2004 when she saw her Mother saying goodbye to her aunt who lived across the street from her grandparents.

She stated that she "missed her Mother and thought it was time to make [amends] with her by trying to get along with her."In February, 2005, she went to live with her Mother and step- father in Arizona and lived there for two years.

T moved to Arizona toward the end of her freshman year. It was a difficult adjustment since she didn't know anyone. She stated "it was very hard to make friends at the end of your freshman year." Contrary to the Mother's testimony, she stated that she went to all of her classes and passed everything except math, which was always a difficult subject for her.

She and her Mother and step-father moved to Buckeye, Arizona prior to her entering her sophomore year. At that point, she began to make friends and socialize more. She stated her Mother did not approve of such socializing. She admitted that she "cut" classes and drank alcohol "occasionally," but did not take drugs (she stated that she was allowed to drink alcohol at home with her Mother during dinner). As a result, her Mother and step-father would punish her by taking away the television, computers and her cellular phone.

Further, she stated they would lock the bedroom doors in the house so that she couldn't get into her bedroom. She stated that she was only permitted access to the living room and backyard. She described how her Mother would take away certain personal items such as "shampoo, eye liner, tampons when I was menstruating and any female hygiene products, when I would go into my mother's room to get them, I was accused of stealing." Each time she was punished it was usually for a two week period. While in Arizona, her Mother again asked T to attend counseling, but demanded that her husband, R.H., attend with them. When T asked for counseling with her Mother alone, her Mother refused such request. Consequently, they did not attend counseling.

T testified that she ran away from home when her Mother threatened to "ground her" and prohibit her from attending a school dance because she was late for curfew. She stayed with her friends during that weekend, went to the dance and returned home on Monday. Contrary to the Mother's testimony that she did not know where T was, T called her Mother and advised her that she would be staying at a friend's house.

T testified that she ran away again because her Mother refused to allow her to call her grandparents on Christmas day in 2006 to "wish them a Merry Christmas." Her Mother would only permit the call if her step-father was supervising. She unplugged the phone from the wall and ran upstairs to call her grandparents when her step-father chased her up the stairs, pulling on her legs so that she would drop the phone. He was pulling at her, pushed her down and tried to get the phone from her hands. She threw water at him and threw his glasses off his face. Since she was "afraid to stay in the house," she found a phone, called her friend and asked her to pick her up. She left the house at 1:00 am and stayed with her friend.Shortly thereafter she returned to New York to live with her grandparents. She stated she has not spoken to her Mother [*7]since that incident. She has sent letters to her Mother asking for her to return her personal items. She also recalled receiving two letters from her Mother (a birthday card and a graduation card) and two emails, but did not read them. She further stated that the two cards and two emails were mailed and emailed to her aunt and not directly to her. She stated that her Mother never suggested or offered the opportunity to return to Arizona and stated she does not feel welcome at her Mother's home.

T testified she is currently a full time student at Nassau Community College with a 3.4 grade point average. She also works part time for a law firm which enables her to pay for part of her car insurance, gas for her car and clothing. She received a scholarship to C.W. Post and plans to major in law. She testified that she had a problem when she applied for financial aid as she could not provide certain required information pertaining to her parent's income. A "TAP" letter seeking such information was admitted into evidence. When she was asked by her attorney why she brought the current action she replied, "Because I knew I was going to need help paying for college and that I couldn't financially, you know, support myself, pay expenses and for my full college tuition." She was required to submit papers from the within proceeding to the college.

The Petitioner's final witness was the Mother, D. H. She was called to testify regarding T's birth certificate. She again testified that R.G. is T's biological father. She stated that she wanted her husband, R.H., to be named on T's birth certificate. She was told by someone in the clerk's office of the Town of Oyster Bay that "since there was no father's name on the original birth certificate, that R.H. could acknowledge paternity, fill out the form and a new birth certificate would be issued based on that." She could not recall if she notified R.G. of the change to T's birth certificate. The Mother further stated that a paternity test was "never done" on Mr. H and that he signed an acknowledgment of paternity without such a test.

Conclusions of Law

A parent has the statutory obligation to support their child under twenty-one years of age. Family Court Act § 413(1)(a). See also Fisher v. Gold 59 AD3d 443 (2nd Dept. 2009).In New York State, this obligation has always been and continues to be a "matter of fundamental policy." Matter of Roe v. Doe, 29 NY2d 188, 192 (1971).

Although the duty to support is a continuing one, it is clear that the child's right to receive support and the parent's right to custody and services are reciprocal. Matter of Roe v. Doe, supra at 193.

A parent's support obligation may be suspended due to emancipation of a child. Children are emancipated if they become economically independent of their parents through employment, entry into the military service, or marriage and may also be deemed constructively emancipated if, without cause, they withdraw from parental control and supervision. Matter of Alice C. v. Bernard G. C., 193 AD2d 97, 105 (2nd Dept. 1993), citing to Besharov, Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 413, at 70 and Matter of Roe v. Doe, supra.

Under 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 Dewitt v. Giampietro, 66 AD3d 773, 774 (2nd Dept. 2009) [*8]citing to Matter of Alice C. v. Bernard G.C. 193 AD2d 97 (2nd Dept. 1993).The proponent of the defense of constructive emancipation has the burden of proof. See Shabazian v. Shabazian, 246 AD2d 688, 689 (3rd Dept. 1998).

Where, however, it is the parent who has caused the alienation between the parent and the child, or has not made any serious attempts to contact the child, abandonment of the parent- child relationship will not be found. Radin v. Radin 209 AD2d 396 (2nd Dept. 1994). See also Kordes v. Kordes 70 AD3d 782 (2nd Dept. 2010), Jaffee v. Jaffee, 202 AD2d 264 (1st Dept. 1994).

In the Matter of Alice C. v. Bernard G.C., supra, for example, the father's support obligation was not relieved since the testimony of the child indicated that the child still loved his father and to the best of his knowledge, his father never attempted to contact him. The court found the record was "virtually devoid of any evidence to demonstrate that the father made a serious effort to visit or establish a relationship with Joseph..." Id. at 110.

Also, in Radin v. Radin, supra, the Supreme Court was affirmed when it rejected a father's claim that his minor daughters had abandoned him based on the fact that the daughters did not return his phone calls and had not contacted him voluntarily. Although the Court acknowledged that a non-custodial parent's support obligation could be terminated where a child has voluntarily abandoned the parent by refusing all contact or visitation without cause, it was determined that where, as here, the parent contributes to the alienation between the parent and child, or has not made serious attempts to contact the child, abandonment will not be found. Moreover, the children's failure to contact their father indicated a "reluctance" rather than an abandonment of the relationship, therefore the father's duty to support the children remained intact.

Turning now to the instant case, the Mother has contended that the doctrine of constructive emancipation should be applied to prevent the entry of a support order. The Mother has claimed that the child, T, has without cause, completely abandoned the mother-daughter relationship by unjustifiably removing herself from her home, and by unreasonably refusing contact.The Mother has additionally argued that Arizona is the home state of T and as Arizona law mandates child support only until age eighteen, same should apply to this matter.

This Court notes that it has carefully considered the testimony and the demeanor of the witnesses at the time of the hearing.This Court has credited the testimony of T, and Mr. and Mrs. M, as credible. As the Mother did not appear before this Court in person during the hearing, rather appearing telephonically (as was her request), this Court could not assess her "physical" demeanor. This Court does not find her testimony incredible; however, her testimony was evasive when she was asked how it came to be that her husband's name was placed on T's birth certificate. The Mother's husband, Mr. H, was not called to testify at the hearing.

The facts of this case reveal a mother-daughter relationship which is painfully devoid of reciprocal love and comfort. It is sadly clear that the relationship between the Mother and T has been strained for many years.While there were "pockets" of time in which T was cared for by her Mother, which were stressful, at best, the testimony showed that from the time that T was an [*9]infant, she has been primarily cared for by her grandparents. Her grandfather sought and was awarded guardianship of T when she was approximately three months old. The order has never been vacated.

The history of the relationship between the Mother and T was borne out at the time of the hearing. There is no one incident which demonstrates that the Mother "abandoned" the child, and there is no one incident which demonstrates that T sought to "disconnect" herself from her Mother. Rather, there are several incidents, over time, which illustrate a pattern of discord in their relationship, which culminated in the filing of the instant petition.

First, the "physical altercation" in 2004 between T and the step-father in which T moved back in with her grandparents. The Mother told her parents that she did not want T back in the house, it was "quiet," and "come get T's things or she would throw them to the curb." T was told "don't come home tonight." T agreed to go to counseling with her Mother, but her Mother would only go if her husband was present.

Second, the events surrounding the Mother's move to Arizona in 2004. The Mother did not advise T in advance of the move. The Mother left T behind in New York. The Mother assumed that the grandparents would continue to care for T. T only learned that her Mother was moving the day she saw her Mother waving goodbye to her aunt, who lived across the street from her grandparents.T stated that she missed her Mother and wanted to make amends with her.

Third, the occurrences when T moved to live with her Mother in Arizona in 2005. T was punished for "cutting classes" and occasionally drinking alcohol. The punishments were that she was locked out of certain rooms in the house, including her bedroom. Personal items were taken away, such as shampoo, eye liner and tampons. She was accused of stealing if she took tampons, when she was menstruating, from her Mother's room. T asked for counseling with her Mother alone, without her step-father present, and her request was denied.

Fourth, the incident on Christmas Day in 2006 in which T attempted to call her grandparents to wish them a "Merry Christmas." Her Mother would only allow her to call if her step-father supervised. T unplugged the phone from the wall and ran upstairs to place the call. Her step-father chased her up the stairs, and there was a physical altercation.

Fifth, she has not spoken to her Mother since she left Arizona in December of 2006.She sent two letters to her Mother, asking for certain items. She received two letters and two emails from her Mother, although they were mailed and emailed to her aunt, and not to her. T stated that her Mother never made any attempt to have her return to her home, although her Mother has stated that she is "welcome."

This is a tragic case in which the Mother has placed her needs above T's. She has been "in and out" of T's life. The Mother has placed T in a position where T has been forced to rely upon her grandparents for all her needs, both financially and emotionally. This began when T was a child, and continues until the present. The Mother willingly relinquished control of T to the grandparents when she moved over 2500 miles to Arizona (as she stated, as far away from her parents as she could). She only took T back into her home in Arizona in 2005, after her parents suggested to her that she do so in an effort for her to have a better relationship with her child.[*10]The grandparents recommended this to the Mother, knowing that T missed her Mother. T even moved to Arizona in the middle of her freshman year of high school to be with her Mother, which was surely difficult.

In an effort to improve her relationship with her Mother, T has asked for counseling with her Mother, but her Mother has refused on the basis that her husband must be present.

The Mother never testified that she attempted to improve the relationship with her child. The Mother never wanted to attend counseling with T, alone. The Mother never offered to discuss T's feelings about Mr. H with her. The Mother blamed all of the difficulties with T on T alone-that she exhibited "bad behavior," that she ran away, etc. The Mother has never accepted any responsibility for the problems that exist between her and her daughter. It is also interesting to note that Mr. H was never called by the Mother to rebut the claims of physical altercations, or any other contentions, made by T.

Sadly, it is only now, with T's petition for support pending before this Court, that the Mother asserts that her home is open to T, that T has been the one to shun their relationship and that she has been the one to "act out."

Instead, the testimony at the time of the hearing demonstrated that the Mother has made T to feel like a stranger to her. For a large portion of this child's life, she has been raised by her grandparents. This is not a case in which T now seeks to escape the Mother's rules.

To the contrary, it has been the Mother who has kept this child at "arms' length."

When the child needed her Mother after the physical altercation with her step-father in 2004, she was told not to come home.Her grandparents were told to "deal" with her, and to come get her clothes. T was never told by her that she Mother was moving to Arizona. Instead, she was left behind. She only discovered her Mother was leaving when she saw her Mother telling her aunt "goodbye." T's punishments have been that hygiene items, such as tampons that she needed during her menstrual cycle, were taken away. When T attempted to call her grandparents on Christmas Day, another physical altercation with her step-father took place.

The testimony was that T wanted to live with her Mother. The testimony was that T would have attempted counseling with her Mother to improve their relationship. The testimony was that she wanted to make "amends" with her Mother. The Mother refused to go to counseling alone with T. Instead of there being a sudden break in the parent-child relationship, this is a case in which the parent and the child have never enjoyed a loving relationship.Moreover, the Mother never believed her daughter when her daughter told her that her step-father was physically abusive to her; rather, it has always been T's fault.

It should be noted that while the maternal grandmother characterized T as a "regular" teenager with "regular" problems, T has never run away from her home. She has abided by the rules in her grandparents house, and she was never beyond their authority. Based upon the facts of this case, this Court finds that the Mother has failed to

demonstrate that T voluntarily abandoned the parent-child relationship, by refusing contact, without justification or cause. The tragic pieces of this case come together to form the picture of a Mother and a child whose problematic relationship chronicles to T's birth. T has not [*11]abandoned the relationship; sadly, she has been living in accordance with the rules the Mother set in place almost twenty years ago.

Lastly, the Mother claimed that Arizona law should apply in this matter.She argued that under Arizona law, child support terminates at age eighteen. She claimed that Arizona law should apply, because it is the child's home state.It was un-refuted by the Mother at the hearing that T had lived in Arizona from February 2005 until January 2007. It was also un-refuted that T had lived in East Meadow, New York from January 2007 until the date of the filing of the petition, July 9, 2008, rendering New York the home state of the child.The child had resided in New York well in excess of six months prior to the filing of the petition. The Mother also did not provide this Court with any reference to the support laws of Arizona. The Mother did not provide any testimonial or statutory authority to counter the un-refuted fact that New York is the home state of the child. Additionally, even if there was some evidence in the record to show that Arizona was the home state, no law from Arizona was presented that states a support obligation is only until the age of eighteen. This argument is therefore denied.

Based upon the above, the Mother's contention that constructive emancipation should apply to prevent the entry of a support order is denied. The Mother's argument that the child should be deemed emancipated under the support laws of Arizona is also denied. The support petition filed by the Petitioner, T. M-H., docket number F-xxxxx-08 is hereby referred to the Support Magistrate for further proceedings.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO

APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

ENTER:

Dated: December 21, 2010.

Westbury, NY

__________________________

HON. STACY D. BENNETT

J.F.C.