55 A.D.2d 719 | N.Y. App. Div. | 1976
.Appeal from an order of the Family Court of Schenectady County, entered October 6, 1975, which adjudged the respondent not liable for the support of appellant, his daughter. The sole question on this appeal is whether respondent was relieved from continued responsibility of supporting his 19-year-old unmarried daughter after said daughter became emancipated with the consent of her mother who had custody. The Family Court held that a child’s emancipation is a complete defense sufficient to relieve a parent from further responsibility for support of that child even though the child is under 21 years of age and whether or not public funds are furnished. We cannot agree, at least where the child is receiving public assistance. Subdivision 1 of section 101 of the Social Services Law clearly mandates support of a child until age 21 where the child is receiving public assistance and contains absolutely no exemption where the child is emancipated. Nor can the discretionary provisions contained in section 415 of the Family Court Act be utilized to create a broad exemption for all emancipated children. Section 415 rather is designed to provide discretion to avoid harsh injustice in individual cases (Committee comments, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act, § 415, p 259) and in the instant case there is present no showing of any circumstances which would mandate the denial of support (cf. Matter of Kittell [Garrison], 171 Misc 983; Matter of Houg v Houg, 159 Misc 894). Emancipation alone is not enough to terminate the child’s statutory rights to support (Matter of McManus v Lollar, 36 Misc 2d 1046; see Wayne County Dept. of Social Servs. v Schultz, 81 Misc 2d 603; 1975 Atty Gen [Inf Opns], April 15, 1934; 51 NY St Dept Rep 258). Order reversed, on the law, without costs, and matter remitted to the Family Court, Schenectady County, for further proceedings not inconsistent herewith. Koreman, P. J., Sweeney, Larkin, Herlihy and Reynolds, JJ., concur. [83 Misc 2d 571.]
