Developmental Disabilities and Child Support
Child support is designed to help parents provide for the child’s needs when the child’s parents do not live together. It helps to ensure that both parents contribute to the basic needs of their children, such as food, clothing, housing, transportation, and other needs.
In most cases, child support is calculated according to a formula. Additional expenses like medical expenses, education-related fees, and childcare costs are addressed separately from the basic child support payment. Often, parents split these types of costs equally or in some other proportion, depending on their incomes.
However, when the parents of a child with special needs or developmental disabilities decide to get divorced, there are many additional things to consider when calculating child support, such as tuition at specialized schools, specialized dietary needs, the need for trained caretakers, attending regular physical therapy appointments, and getting special equipment that a child may require to help them get around. These additional considerations will often contribute to the decision of how much child support a non-custodial parent should pay.
A child’s special needs can also now also influence how long support is awarded for. It is not uncommon for parents of a child with special needs to care for their child into adulthood. There is also the reality that significant time, oversight and advocacy is required by a parent who is primarily responsible for an adult disabled child, not only in actual care but also in navigating the system of securing benefits for the child as they transition to adulthood. While child support payments typically end when the youngest child either reaches the age of 21 or graduates from college—child support payments can now be extended for children with disabilities or special needs.
Child Support for Children with Developmental Disabilities Under New York Law
A new law was recently passed in the state of New York that extends payments of child support for parents or caregivers of children with developmental disabilities until the child reaches the age of 26. The new law extending child support payments under these circumstances was passed unanimously in October of 2021 and officially went into effect starting in 2022. See Domestic Relations Law §240-d; Family Court Act § 413-b.
Prior to this law going into effect, child support for all New York children ended when they turned 21 years of age. New York is now the 41st state to extend child support for children with developmental disabilities.
How Do I Know If My Child is Eligible for an Extension of Child Support Under the New Law?
This new law could benefit your family if your child has been diagnosed with a developmental disability. Even if you already have a child support order in place, your current order can be modified as deemed necessary, as long as your child is not older than the age of 26.
In order to be eligible for the extension of child support provided by New York’s new law, the custodial parent or caregiver and their child must meet the following requirements:
The child must be formally diagnosed with a developmental disability (as defined by Mental Hygiene Law §1.03 (22) by a medical professional
The disability must have originated before the child turned 22;
The disability has continued or can be expected to continue for an indefinite period of time; and
The disability constitutes a substantial handicap to that child’s ability to function normally in society.
For the purposes of this law, the term developmental disability includes cognitive, physical, and developmental disabilities. At Divorce Mediation Professionals, we can help you and your former partner work out a fair agreement (or modify an existing one) so that you can both be assured that your child with developmental disabilities will have their needs met going forward.
What Steps Do I Need to Take to Extend Child Support Through the Age of 26 Under These Circumstances?
Anyone who might be impacted by the new law should take note that the child support extension is not automatically applied to your case. You can file a petition for an extension of child support if you are the custodial parent or caregiver of a child with developmental disabilities and your child lives with you and is also principally dependent on you, again not just for your direct care, but also for your role as an advocate and coordinator of care. Whether or not your petition for the extension of support is granted is up to the judge’s discretion.
However, modifying your current agreement through mediation is typically a more amicable and productive approach. If you are a custodial parent or caregiver of a child with diagnosed developmental disabilities and wish to extend child support as a modification to a current court order, you and your former spouse can work collaboratively together with a mediator to modify your current agreement without going to court and becoming adversarial.
As the Custodial Parent, Will I Receive Child Support Payments Directly Under the New Law When My Child Becomes an Adult?
Under New York’s child support extension update to the current law, the court has the power to order payments to be made in one of two ways. The first way is for the payments to be made directly to the custodial parent or petitioning caregiver of the child. This is often how standard child support payments are made, in general.
The other payment option is for the court to order that the payments are to be made directly to a trustee of an established “exception trust”, also known as a “special needs trust” or a “first party supplemental needs trust”. This payment method is often recommended if it will assist in maximizing governmental assistance, such as Supplemental Security Income (SSI) and Medicaid eligibility, to the child. An exception trust is essentially a trust which is established for the benefit of a disabled person under the age of 65. This type of trust offers certain protections under the law. It is important to always consider the interplay between child support and the availability of these governmental benefits and structure your agreement accordingly.
In mediation, you and your former partner can work together with the assistance of a mediator to create an agreement (or modify an existing one) to ensure that your child’s needs are met. Oftentimes, your mediator will work in collaboration with a special needs attorney to ensure that your child’s access to governmental benefits and Medicaid eligibility is not negatively impacted. This method can save you both the time and money that you would spend in court, and also make the process less stressful overall. Most importantly, you would have the opportunity to construct a more creative agreement that suits the unique needs of your child as they transition into adulthood.
Seeking Mediation in New York to Address Developmental Disabilities and Child Support
Child support and custody determinations can become complex, especially when children with special needs are involved. It is always crucial to put your child’s best interests first when making such important decisions that will certainly impact their lives. A divorce mediator can help your family work out the best settlement agreement- or modify an existing agreement- in a more collaborative, private and cost-effective manner.