A New York Family Lawyer said that sometime in October of 1968, a separation agreement was entered into by the parties (husband and wife), the terms of which were subsequently incorporated into a divorce decree granted and entered in Mexico. The agreement gave the mother, the respondent, custody of the children of the marriage and ordered the petitioner to provide support for their son, S, in the amount of $30 per week with visitation rights. Thereafter, on petitioner’s motion to compel visitation, the court by order entered 15 February 1977 granted petitioner specific revised rights of visitation with S.
Since the date of entry of the order of 15 February 1977, petitioner alleges that: he has been permitted to visit S only five times and has not been permitted to see him at all for the past five years; on his last attempt to see S, respondent’s husband told him S did not want to see him and ordered him to leave; in 1979, he discovered that S ceased using his surname, he had taken that of his stepfather and he has been known by that name since 1976.
A New York Divorce Lawyer said that subsequently, petitioner moves pursuant to § 241 of the Domestic Relations Law for the suspension of the provision in the judgment of divorce for the support of the parties’ eighteen year-old son.
In opposition to petitioner’s motion, respondent and S informs both the court and the petitioner that, almost simultaneously with his eighteenth birthday, S legally changed his surname to that of his stepfather without notice to or consent of petitioner but they offered no explanation as to why S chose, as is his right pursuant to Civil Rights Law Article 6, to change his surname. Both respondent and S deny that respondent attempted to impede visitation or contact between petitioner and son but S concedes that the failure of communication was due in part to his own actions.
A New York Divorce Lawyer said that the respondent then cross-moves for an order directing petitioner to pay for S’s college education. In support of the cross-motion, respondent asserts that they did not foresee the need to make provision for S’s college education at the time the separation agreement was executed. Together with S, respondent posits that college is a prerequisite to success in the present era of unemployment, S will be entering Nassau Community College, and S does not have the financial means to pay for his own education. However, no mention was made regarding petitioner’s or respondent’s income being furnished to the court, and there was scant enlightenment concerning S’s academic abilities.
The court ruled as follows:
First, while a factual issue is in fact present as to whether respondent has interfered with or withheld visitation rights so as to justify a suspension of the child support payments, their suspension without the necessity of a hearing is nonetheless warranted because of the total abandonment by S of his father, most tellingly exhibited by S’s change in surname to that of his stepfather. While it is true that the parental obligation to support a child does not terminate simply because the child is at odds with the parent, it is also true that the child’s right to support is not unlimited. As held in the celebrated case of Roe v. Doe, a parent has a right to expect a minimum of respect and obedience from his child. By admittedly rejecting visitation with his father and by cavalier rejection of paternal identity without consultation with or explanation to petitioner, this eighteen-year-old “adult” (Civil Rights Law § 1-a) has voluntarily asserted his independence from petitioner and has thus forfeited his right to claim support from him. Thus, petitioner’s application must be granted.
Second, a Long Island Family Lawyer said that the cross-motion must be summarily denied. The application by respondent is no more than an attempted “counter-attack” and given the granting of petitioner’s application, it cannot be granted. Moreover, even if S is entitled to claim support from petitioner, college expenses are not ordinarily included in the parental duty of support. While the separation agreement does not automatically bar a direction by the court that petitioner pay S’s college expenses, neither respondent nor S has made the requisite showing that special circumstances exist which would warrant such a direction.
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