DECISION AND ORDER AFTER MOTION #1 The parties are unmarried and have one child-in-common, L.A.N. (hereinafter “L” or “daughter” or “child”). The Mother, L.L.N. (hereinafter “Mother” or “Ms. N”), is the residential custodial parent of the parties’ seventeen year old daughter. On March 15, 2023, Ms. N filed a petition seeking to declare M.E.C. (hereinafter “Father” or “Mr. C”) to be L’s father. See Petition for Paternity (Individual) (N, 03/15/2023), Nassau County Family Court Docket Number P-02262-23. On August 3, 2023, upon Mr. C’s admission, an order of filiation was entered adjudicating him to be L’s legal father. See Order of Filiation (Mendelson-Toscano, S.M., 08/03/2023), Nassau County Family Court Docket Number P-02262-23. On that same date, Ms. N made an application to convert her paternity petition to be a support petition. She sought Mr. C’s contribution towards their daughter’s support. The Court issued a temporary order directing Mr. C to pay $554.00 monthly towards L’s support. See Temporary Order of Support On Consent (Mendelson-Toscano, S.M., 08/03/23), Nassau County Family Court Docket Number F-02262-23. On September 18, 2023, Mr. C filed a petition seeking to relieve his obligation to pay child support based upon abandonment and constructive emancipation. See Pet. for Relief from Support Payments due to Abandonment and Constructive Emancipation (C, 08/30/2023), Nassau County Family Court Docket Number F-02262-23/23A. On October 2, 2023, Ms. N filed a motion to dismiss. See Not. of Mot. (Marks, 09/30/2023), Nassau County Family Court Docket Number F-02262-23/23A; see also Aff. in Supp. (Marks, 09/30/2023), Nassau County Family Court Docket Number F-02262-23/23A. She argued that Mr. C’s petition failed to state a cause of action and, in the alternative, she asserted that this Court lacks subject matter jurisdiction to hear claims of visitation as a defense. See id. On October 10, 2023, Mr. C filed an amended petition seeking to relieve his obligation to pay child support. See Amended Pet. for Relief from Support Payments due to Abandonment and Constructive Emancipation (Persichilli, 08/30/2023), Nassau County Family Court Docket Number F-02262-23/23A. On that same date, Mr. C filed responsive papers to Ms. N’s motion to dismiss. See Aff. in Opp’n (Persichilli, 08/30/2023), Nassau County Family Court Docket Number F-02262-23/23A. He maintained that his superseding amended petition cures his original petition, and his daughter’s disinterest in having a relationship with him is not a visitation matter so this Court may hear the case. See id. On October 12, 2023, Ms. N filed reply papers maintaining that Mr. C’s amended petition is untimely. See Repy Aff. (Marks, 10/12/2023), Nassau County Family Court Docket Number F-02262-23/23A. She asserted that Mr. C’s petition is nothing more than an answer to her petition with affirmative defenses. See id. She argued that, as such, the correct time period used to calculate the timeliness of Mr. C’s amended petition should be measured from either her paternity petition’s filing date or the date it was converted to be a support petition. The Court finds her argument to be unpersuasive. In order for a person to interpose certain defenses to a child support action, that party must file a petition seeking relief from his or her child support obligation. See Lew v. Lew, 214 A.D.3d 732, 733 (2d Dep’t 2023) (father filed petition for relief from child support); Fielder v. Fielder, 189 A.D.3d 1231, 1232 (2d Dep’t 2020) (same); Johnson v. Gordon, 166 A.D.3d 975, 976 (2d Dep’t 2018). Thus, timeliness is measured from the date that Mr. C filed his initial pleading. Since his amended petition was filed twenty-two days after he filed his original pleading, Mr. C’s amended petition would have been untimely had no motion to dismiss been filed. See N.Y. C.P.L.R. §3025(a) (McKinney’s 2023) (“A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.”); see also Rosas v. Petkovitch, 218 A.D.3d 814, 815-16 (2d Dep’t 2023). However, Ms. N’s motion to dismiss extended the time period for Mr. C to file his amended petition. See N.Y. C.P.L.R. §3211(f) (McKinney’s 2023) (“Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order.”); see Rosas, 218 A.D.3d at 815-16; Re-Poly Mfg. Corp. v. Dragonides, 109 A.D.3d 532, 534-35 (2d Dep’t 2013). Thus, the Court finds that Mr. C’s amended petition is timely. In its discretion, the Court may consider Mr. C’s amended petition to be the operative pleading against which Ms. N’s motion to dismiss is directed. See Rosas, 218 A.D.3d at 816 (citing cases). Having considered the parties’ arguments and having applied them to the law, the Court’s determination follows: DISCUSSION MS. N’S MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION IS HEREBY DENIED A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to New York Civil Practice Law and Rules (hereinafter “CPLR”) §3211(a)(7). See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2023); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2023) (FCA adopts and applies CPLR where FCA is silent). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). The Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2023); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Parents have an obligation to contribute to their children’s expenses until they are emancipated. See N.Y. FAM. CT. ACT §413(1)(a) (McKinney’s 2023); see also Sullivan v. Stroop, 496 U.S. 478, 482 (1990) (child support is legally compulsory payments by one parent to another towards expenses of children borne of marriage); H.M. v. E.T., 14 N.Y.3d 521, 527 (2010); Addimando v. Huerta, 147 A.D.3d 750, 752 (2d Dep’t 2017). Where a petition has been filed, the Family Court must order a non-custodial parent to pay child support to a custodial parent. See generally N.Y. FAM. CT. ACT §413(1) (f)(10) (McKinney’s 2023). Child support may be forfeited under the theory of constructive emancipation. See Robinson v. Thomas, 167 A.D.3d 749, 751 (2d Dep’t 2018); Dejesus v. Dejesus, 152 A.D.3d 585, 586 (2d Dep’t 2017); Addimando, 147 A.D.3d at 752; Brinskelle v. Widman, 137 A.D.3d 1022, 1022-024 (2d Dep’t 2016); McCarthy v. McCarthy, 129 A.D.3d 970, 971-72 (2d Dep’t 2015); Barlow v. Barlow, 112 A.D.3d 817, 818 (2d Dep’t 2013); Gold v. Fisher, 59 A.D.3d 443, 444 (2d Dep’t 2009). A child may be found to be constructively emancipated where such child, of employable age, voluntarily and without cause, refuses contact with a parent. See e.g. Robinson, 167 A.D.3d at 751; Dejesus, 152 A.D.3d at 586; Addimando, 147 A.D.3d at 752; Brinskelle, 137 A.D.3d at 1022-024; McCarthy, 129 A.D.3d at 971-72; Barlow, 112 A.D.3d at 818; Gold, 59 A.D.3d at 444. However, a child’s mere reluctance to see a parent will not relieve that parent of their child support obligation. See Malloy v. O’Gorman, 139 A.D.3d 733, 735 (2d Dep’t 2016) (citing cases). Under the theory of parental alienation, a non-custodial parent’s child support payments may be suspended. See Morgan v. Morgan, 213 A.D.3d 669, 670 (2d Dep’t 2023); see also Fielder, 189 A.D.3d at 1232; Johnson, 166 A.D.3d at 976; Addimando, 147 A.D.3d at 753. Parental alienation may be found where a custodial parent actively interferes with, or deliberately and unjustifiably frustrates, a non-custodial parent’s right of reasonable access to a child. See Morgan, 213 A.D.3d at 670; see also Fielder, 189 A.D.3d at 1232; Addimando, 147 A.D.3d at 753; Vasquez v. Powell, 111 A.D.3d 754, 754-55 (2d Dep’t 2013); Ledgin v. Ledgin, 36 A.D.3d 669, 670 (2d Dep’t 2007). Having reviewed Mr. C’s amended petition and accepting his amended petition’s alleged facts as true, the Court finds that Mr. C’s amended petition sufficiently sets forth causes of action for parental alienation and constructive emancipation. ADJUDGED, that accepting all of the alleged facts within the amended pleadings to be true, Mr. C has sufficiently set forth causes of action for parental alienation and constructive emancipation; and it is therefore, ORDERED, that the portion of Ms. N’s motion to dismiss pursuant to New York Civil Practice Law and Rules §3211(a)(7) is hereby denied; and it is further, ORDERED, that Mr. C’s amended petition may proceed. MS. N’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION IS HEREBY DENIED A party to a family court action may file a motion to dismiss under the theory that the court does not have subject matter jurisdiction. See N.Y. C.P.L.R. §3211(a)(2) (McKinney’s 2023); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2023). A court is required to dismiss petitions where subject matter jurisdiction is absent. See e.g. Nassau Cty. Dep’t of Soc. Servs. v. Ablog, 194 A.D.3d 817, 819 (2d Dep’t 2021) (finding petition should have been dismissed where Florida retained continuing, exclusive jurisdiction over child support action); Criscuola v. State of N.Y., 188 A.D.3d 645, 646 (2d Dep’t 2020) (upholding dismissal grounded in want of subject matter jurisdiction since failure to comply with filing requirements deprived court of such jurisdiction); Klingsberg v. Council of Sch. Supervisors & Admi’rs-Local 1, 181 A.D.3d 949, 950 (2d Dep’t 2020) (affirming subject matter jurisdiction dismissal where cause of action preempted by Federal law). A support magistrate’s authority is set forth within New York Family Court Act §439(a). See N.Y. FAM. CT. ACT §439(a) (McKinney’s 2023). Whereas a support magistrate has authority to determine the issue of emancipation, constructive or otherwise, see N.Y. FAM. CT. ACT §439(a) (McKinney’s 2023) (support magistrates hear and determine support proceedings); see also Robinson, 167 A.D.3d at 751 (upholding support magistrate’s determination on issue of constructive emancipation); Dejesus, 152 A.D.3d at 586 (finding no reason to disturb support magistrate’s decision on constructive emancipation); Brinskelle, 137 A.D.3d at 1022-024 (support magistrate held constructive emancipation hearing; 18 year old and fourteen year old found not constructively emancipated), a support magistrate is prohibited from hearing the issue of parental alienation. See N.Y. FAM. CT. ACT §439(a) (McKinney’s 2023) (support magistrate may not hear issues of visitation as a defense); see also Lew v. Lew, 214 A.D.3d 732, 733 (2d Dep’t 2023). Such allegations must be referred to a family court judge for determination. See N.Y. FAM. CT. ACT §439(a) (McKinney’s 2023) (support magistrate must refer matters of visitation as a defense); see also Lew, 214 A.D.3d at 733 (where parental alienation alleged, matter referred). The Court declines to dismiss Mr. C’s amended petition for lack of subject matter jurisdiction and hereby respectfully refers the issue of parental alienation to the Honorable Ayesha K. Brantley (hereinafter “Judge Brantley”), the family court judge to whom Mr. C’s visitation petition has been assigned. In light of this Court’s referral to Judge Brantley on the issue of parental alienation, which is inextricably intertwined with the issue of constructive emancipation in this case, the Court hereby respectfully refers the issue of constructive emancipation to Judge Brantley. ADJUDGED, that this Court has no authority to determine the issue of parental alienation which must be referred to a family court judge; and it is further, ADJUDGED, that the issues of parental alienation and constructive emancipation are inextricably intertwined in this case and must be referred together to a family court judge; and it is therefore, ORDERED, that the portion of Ms. N’s motion to dismiss pursuant to New York Civil Practice Law and Rules §3211(a)(2) is hereby denied; and it is further, ORDERED, that Mr. C’s amended petition is respectfully referred to the Honorable Ayesha K. Brantley on the issues of parental alienation and constructive emancipation. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATE-ISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: Dated: October 18, 2023
