Who has custody of a grandchild when the mother and father are both minors?
Full Question:
Who has custody of a grandchild when the mother and father are both minors
11/05/2016 |
Category: Minors ยป Emancipation... |
State: New York |
#26224
Answer:
Here is what we found.
Family Court Act 413, FCA 413: Parents' duty to support child provides that a parent has an obligation to support a child until age 21. This support can stop if the child is emancipated.
It appears that in New York the Courts allow a parent to get out of their support obligation if the Court finds, based on the specific facts of each case that the child is emancipated. The Court, not the legislature, has established some things that make a child emancipated.
Those include:
1) He or she is married. Cochran v. Cochran, 196 N.Y. 86, 89 N.E. 470 (1909); Matter of Williams, & 106 Misc. 2d 280, 431 N.Y.S. 2d 334 (Fam. Ct. Monroe County 1980); Bach v. Long Island Jewish Hospital, 49 Misc. 2d 207, 267 N.Y.S. 2d 289 (Sup. Ct.Nassau County 1966).
2) He or she is in the armed services. Zuckerman v. Zuckerman, 154 A.D. 2d 666, 546 N.Y.S. 2d 666 (2d Dept. 1989); Fauser v. Fauser, 50 Misc. 2d 601, 271, N.Y.S. 2d 59 (Fam. Ct. Nassau County 1966).
3) He or she has established a home and is financially independent. Roe v. Doe, 29 N.Y.2d 188, 272 N.E.2d 567, 324 N.Y.S.2d 71 (1971); Knoll v. Kilcher, 100 A.D. 2d 686, 473 N.Y.S. 2d 887 (3rd Dept. 1984); Giovagnioli v. Ft. Orange, 133 N.Y.S. 92 (3rd Dept. 1911); Rosemary v. George, 103 Misc.2d 1036, 427 N.Y.S.2d 553 (Fam. Ct. Dutchess County 1980); Bickford v. Bickford, 83 Misc. 2d 571, 371 N.Y.S. 2d 782 (Fam. Ct. Schenectady County 1975).
4) His or her parent has failed to fulfill parental support obligations and the minor seeks emancipation. Gittleman, 81 A.D. 2d 632, 438 N.Y.S. 2d 130; Murphy v. Murphy, 206 Misc. 2d 228, 133 N.Y.S. 2d 796 (Sup. Ct. Broome County 1954).
See https://minors.uslegal.com/emancipation/new-york-emancipation-of-minor-law/
Additonal statements of emancipation include that the child is in the military.
In this case the child has given birth to a child but has the child become self-supportive or emancipated. This is a question that the Court would have to decide based on all of the facts. The New York courts use the term constructive emancipation and apply it to a wide range of facts.
As to who has custody of the child, we can find nothing to support that a parent of the Mother or Father of a minor child has custody of a child born to that minor.
The majority of States hold that the fact that a minor has given birth to a child does not mean the child is automatically emancipated.
Therefore, the minor child is still subject to be supported and the guardians are the parents of the minor child and as such make decisions for the child according to law.
LaBrecque v. Parsons , 74 Mass. App. Ct. 766 (2009). This court says in part "Though no Massachusetts case has addressed this specific issue, there is nothing in our statutory scheme relative to the issue of support, or in our decisional law, on the question what constitutes emancipation that supports the conclusion that a child, who is otherwise not emancipated, becomes emancipated as matter of law when she gives birth to a child. This view is consistent with that of other States that have considered the question."