One of the most glaring contradictions in the practice of matrimonial law is that divorce litigation proceeds all the way up through the start of a trial without being governed by the rules of evidence. But when a trial starts, perhaps years after the divorce action has been commenced, all of a sudden the rules of evidence are front and center.
The danger posed by this contradiction should be obvious: an attorney can prosecute an argument or arguments for the better part of 80 to 90 percent of the duration of a divorce litigation without concern for questions such as (1) is this hearsay, and if so, is there a hearsay exception that applies; (2) is this document authenticated; (3) can I get this document in evidence even though its author is no longer alive; (4) is this a business record, and many more.
But when trial starts, the unchained litigious arguments that an attorney can make in motion papers and at oral argument on motions without evidentiary restriction are met with a gigantic brick wall, and that attorney had better be ready with concrete evidence.
That brings us to the subject of constructive emancipation of children in divorce, which to my mind incorporates one of the most challenging and complex burdens of proof in the scheme of the many claims that can be made in the context of divorce litigation.
In the recent decision of L.E. v. Y.E., 2025 NY Slip Op 51038(U) (Family Court, Westchester County, May 2025), the petitioner-father sought to discontinue his child support obligations for his three children on the basis that they had been constructively emancipated. Prior to the father’s modification petition, the mother had been awarded sole legal and physical custody, with the father having “supervised and/or unsupervised access” with the children.
The father ceased paying all support in 2023, and alleged that “despite his efforts, the children have refused to see him for six years, and by their choice and not his actions, and as a result, are constructively emancipated.”
In New York, parents are responsible for the support of their children until age 21. But under the doctrine of constructive emancipation, as explained in L.E., “a child of employable age who actively abandons the noncustodial parent by refusing all contact and [parental access] may forfeit entitlement to support. A child’s mere reluctance to see a parent is not abandonment.”
Further, when it is the “parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her parental access rights, the child will not be deemed to have abandoned the parent…Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated.” As expected, the party asserting constructive abandonment bears the burden of proof.
With that legal framework in mind, in L.E., the youngest child (age 7) could “hardly be said to be of employable age.” As to the two older children, the record showed that “it was the father who caused the breakdown of the relationship.” The “uncontroverted testimony showed only lackluster and intermittent attempts by the father to connect with the children.”
Again, emphasizing the importance of actual evidence (not argument), the Court’s decision explains that “the father was unable to establish that the mother interfered with or hindered their relationship in any way. The record shows that she encouraged the children to maintain contact with the father and did not allow them to disparage him in her presence…Despite the mother’s encouragement, the children still chose of their own accord not to see the father. However reluctance to see a parent is not abandonment, particularly where, as here, the children have a verifiable justification to support their decisions” (emphasis added).
The decision informs the reader—in no uncertain terms— just how critical actual proof (not argument) is in domestic relations matters:
The record in this case is replete with evidence of the father’s refusal to take accountability for his own actions and their role in the destruction of his relationship with his children. Rather than putting forth any serious demonstration of his own efforts to keep in touch, to support or to develop any meaningful relationship with his children, the father repeatedly sought, without any evidence, to lay blame for the failure of his relationship elsewhere. The reports of the father’s inappropriate, aggressive and violent conduct, a dearth of any verifiable efforts on his part to connect with the children or repair the damage caused by his actions, and finally, his abandonment of the custody matter, demonstrate that the failure of his relationship with the children falls solely at his feet (emphasis added).
Consider the evidence: the father testified that “he tried to be a father, moving close to them after the divorce and paying what he could for child support, despite being unemployed” and that he “constantly reached out to see his kids.” But as the decision notes, he “did not testify to any more specific acts on his part.” Instead, he “pointed to what he sees as efforts by visitation supervisors to portray him as abusive or deviant, including an incident at the YWCA and an incident with the youngest child on a train. He described these reports as unsubstantiated.” The father testified that at one scheduled visit, the youngest child “hid in the back seat of the car, afraid of him” however “the children had no reason to fear him and [] there is no criminal case or current order of protection against him.”
In contrast, the mother testified “credibly” that she had “consistently encouraged the children to visit or be in touch with their father…the father never reaches out to the children except on their birthdays and [] she has never prevented the children from speaking with him…she stated that she made the boys go to the YWCA for supervised visits even when she knew they would not participate. As to why the older children did not want to see their father, the mother stated that it was due to what they witnessed in the home, including domestic violence and aggressiveness toward the mother and the children. She said they have memories of violence.”
Supervised visitation at the YWCA was canceled “after the father failed to show up for several reasons.” The mother also testified “believably that the father had many opportunities but never pushed to see or be involved with the children. She testified that he did not even show up in the custody matter and his petition for custody was dismissed in his absence. Despite all this, the mother stated that she has been encouraging the children to visit with their father for ten years. In addition, she testified that the father has the children’s telephone numbers, and they have his. Available means of communication have always existed. The mother stated that she always tells the children whenever the father calls for their birthdays. She further added that she does not allow the children to say anything negative about their father in her presence. If they try to, she cuts them off saying ‘he’s your father; he will always be your father.’”
Notably, the mother also called her brother to testify: “He testified to his own efforts to intervene and bring the father and the children together, to get the father to ‘step up.’ He did not want the children to grow up without a father as he did. When the brother expressed this concern to the father, he responded that it is ‘not [his] problem.’ The brother’s efforts were in vain. He testified that the father has not made any effort to be in touch with the children except for calls on their birthdays.”
Then, there is this, which underscores that in domestic relations matters that go the distance, evidence rules the day, and arguments quickly fade into the abyss:
The mother’s testimony was supported by the record in this case. The file contains YWCA reports showing that the mother continued to bring all three children to the YWCA even when the boys indicated that they did not want to see the father. In addition, there is a November 12, 2019 YWCA report that indicates that the YWCA visits were terminated at that time due to the father’s failure to show up for several visits. The file also contains a report of an October 20, 2020 visit between the father and the youngest child [] that had to end early at the request of [] after she witnessed the father’s ‘aggressive and/or intimidating behavior’ when he became ‘irate’ at overhearing the mother talking on the phone. Following this incident, the YWCA notified the Court that all visits would thereafter be terminated after the father became ‘hostile with staff’ and ‘bribed a security guard into writing a good report on his behalf.’ Finally, the court record indicates that the father’s custody petition was dismissed on default on October 25, 2023 when the father failed to appear after telling his attorney that he has ‘moved on.’
Long story short: when considering a claim for constructive emancipation, take a deep dive into the evidence pool before commencing litigation which may well be unsustainable at trial.
"Constructive Emancipation in Divorce: A Steep Evidentiary Burden," by Alan Feigenbaum was published in the New York Law Journal on August 21, 2025.
Reprinted with permission from the August 21, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.