Long Island Family Law and Mediation Blog
During a divorce or separation between parents, and for parents that were never married, there are various issues which need to be considered to ensure the long-term safety and wellbeing of the child. In New York, the courts will often do everything in their power to ensure the negative impact of a divorce, or parents that do not live together, on a child is as minimal as possible. While the end of a relationship, whatever the length (long term or a one-night stand), or a marriage between two parents can be upsetting for a child, it shouldn’t negatively influence that child’s ability to thrive in life.
Sometimes, to ensure a child continues to access the opportunities they would have had should their parents have stayed together, or to simply take care of their needs, the court will need to order child support. This payment, given to the primary caregiver or the residential custodial parent of the child, helps to ensure they can give the child the best quality of life without the presence of the other parental figure.
In most cases, child support is calculated according to a specific formula. However, certain children will have advanced or specific needs which require the standard formula for child support to be reconsidered. For children with special needs, additional considerations will often contribute to the decision of how much child support a non-custodial parent should pay. These special needs can also influence how long support is awarded for. A law just signed into effect in New York now extends the age of child support for special needs children. This can mean proceeding with or defending against an onslaught of child support petitions in Family Court, or post-divorce judgment motions in the Supreme Court for special needs children that have already aged out.
Developmental Disabilities and Child Support
Until recently, the New York law outlined a parent’s obligation to provide support to a child with a developmental disability as being in place until the child reached 21 years of age. However, New York has now joined 40 other states in America in enacting new legislation to support the custodial parents of adult children with special requirements by allowing child support for special needs children up to age 26.
The update to the child support law now supports the delivery of child support payments to a child with developmental disabilities until the age of 26. This also means that individuals under the age of 26 may now be able to start receiving child support payments again, after an application after having previously been deemed as “aged out”.
The new law applies to the single parents of children aged over 21 who have already been diagnosed with a developmental disability by a medical professional. These children must also reside with the parent seeking support and be primarily dependent on that parent.
The guidelines of which children are entitled to the extended child support for the newly enacted legislation are based on the New York Mental Hygiene Law, and it’s four-pronged approach to the definition of developmental disability. This law dictates that the disability must be attributable to an intellectual disability, such as cerebral palsy, neurological impairments, epilepsy, familial dysautonomia, autism, or Prader-Willi syndrome.
Further, the law notes any other condition can be considered if it causes the impairment of general intellectual function to that of intellectually disabled people. Notably, the disability in these cases must also have originated before the child reaches the age of 22.
Requesting Child Support After the age of 21
While most child support cases will only deem a parent as being responsible for their child financially until the age of 21, the new legislation highlights the fact that children with developmental disabilities may still be unable to care for themselves at this age. Reaching the age of 21 with a developmental disability does not mean the individual is no longer dependent on the support of their custodial parent.
Notably, however, the guidelines of the new legislation do highlight specific situations wherein it is or is not appropriate to request child support for a longer term than usual. For instance, the parents and caregivers of a child who is disabled after reaching the age of 22 will not be able to petition for child support based on the guidelines of the new law.
The new law also dictates that to receive child support; there must be evidence that the issues caused by the disability have continued past the age of 21 or can be expected to continue indefinitely. What’s more, to constitute a “developmental disability” in the eyes of the new law, the disability in question must act as a substantial handicap to the adult’s ability to function in society. For instance, the child may be unable to get a job and earn a liveable wage with this developmental problem.
To pursue a child support arrangement which continues after the age of 21 for a developmentally disabled child, a parent seeking support must show the child in question meets the definition outlined by the legislation. The law then gives the court the discretion to determine whether an order of support is necessary.
The courts have the discretion to use the current child support guidelines when determining the correct award amount for the child support order. The law directs the court to create an order for the support using the typical guidelines intended when calculating support for children under the age of 21. However, the court can also consider other factors, like specific medical costs.
When processing the order, although a new child support order for children that already aged out cannot be made retroactively, in deciding the amount of the order, the court can also consider whether the financial responsibility of caring for the child has been unreasonably placed on just one parent, when it should have been shared evenly between both parents.
If you have questions about the child support law in New York, and how the latest changes to legislation for developmentally disabled children may influence you, feel free to reach out to my office to get on our calendar today. You can find a contact form on this website where you can get in touch to book a free initial consultation on your case for (up to the first 30 minutes is free). Altenratively, you can reach out over the phone.