Recently, the Second Department held that a child’s entry into a service academy is now considered an emancipation event for child support purposes. In New York, a parent must financially support a child until the child turns 21 years old or becomes emancipated. When a child is emancipated, it is likely due to the fact that they are self-supporting and no longer live with their parents. A child who was once emancipated may become dependent on the parents again before turning 21 years old.
Generally, a child under 21 is considered emancipated if:
(1) the child is married;
(2) the child is in the military;
(3) the child finished 4 years of college;
(4) the child is 18 years old and working full time; or
(5) the child permanently leaves home and ended the relationship with both parents.
It has been questioned for some time whether a child entering a service academy is the same thing as a child entering the military for emancipation purposes. However, that debate has now come to a close. In Dentale v. Dentale, the parties entered into a Stipulation where they decided “ [e]ntry into the armed forces of the United States (provided that the Emancipation Event shall be deemed terminated and nullified upon discharge from such forces, and, thereafter, the period shall be the applicable period as if such an Emancipation Event by reason of the entry had not occurred).” See Dentale v. Dentale, 2021 N.Y.Misc. LEXIS 1196 (Nassau County Supreme Court, 2021). In this case, the parties son became a midshipmen in the United States Military. The ex-husband contended that the parties son was now emancipated due to the fact that 38 U.S. Code sec. 1965, defines "active duty" as follows: “(1)(D) full-time duty as a cadet or midshipman at the United States Military Academy, United States Naval Academy, United States Air Force Academy, or the United States Coast Guard Academy.” The ex-wife contended that the United States Military Academy’s handbook states that it is an undergraduate college. Judge Goodstein held that the son was in fact emancipated since the Stipulation was silent regarding whether the parties agree that entrance at a military academy does not constitute enlistment in the miliary. Had the Stipulation specified that, then the ex-wife would have been correct to argue the parties’ son was not emancipated.
Similarly, in Zuckerman v. Zuckerman, the Second Department held that the parties’ son was emancipated when he entered into West Point. Zuckerman v. Zuckerman, 154 AD2d 666, 546 N.Y.S.2d 666 (2d Dept. 1989). Prior to this holding, the parties stipulated that the father was obligated to pay child support until each child turned 21 years old or became emancipated. The Appellate Division referred to federal code when they held that upon entering West Point, the “minor child is considered a member of the military and under government control, which is inconsistent with a parent’s control and support of a child. “
Here at Capetola and Divins, P.C., our experienced partner Byron A. Divins, Jr., was formerly in the U.S. Navy. Mr. Divins spent thirteen years on active duty serving as a prosecutor, defense counsel and advisor to Commanding Officers throughout the world. Mr. Divins exceptional experience and understanding is invaluable when it comes to military issues such as the one being discussed.
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