The ongoing costs for a special needs child can be exorbitant and when you factor in an increased likelihood of divorce and two households to be supported, the financial pressures, let alone the emotional ones, are trying. Until this month, child support for all children in New York ended at age 21, regardless of whether a child would actually be able to be self-supporting at age 21. Now, a new law passed unanimously this month by the New York legislature, permits a custodial parent to pursue child support for adult children with disabilities or any child above the age of 21 and such support will continue until age 26. New York is now the 41st state to extend support for such children.
It is clear that this law will have a massive impact on the lives of parents and children in this state. While it is too early to know how courts will apply this new law, the below outlines what we do know about this new law at this juncture.
What does the law do?
The law amends the domestic relations law and the family court act to allow custodial parents or caregivers of children with “developmental disabilities” to petition a Court to receive support payments until the child is age 26. See Domestic Relations Law §240-d; Family Court Act § 413-b.
Who does the law apply to?
A parent who can file a petition is the custodial parent of a “developmentally disabled” child and that child is “principally dependent” on the custodial parent and resides with the custodial parent.
The child must be diagnosed by a medical professional with a developmental disability. A developmental disability is as defined by the Mental Health Law, which includes an intellectual disability, cerebral palsy, epilepsy, neurological impairment, familial dysautonomia, Prader-Willi syndrome or autism. The disability must: (1) have originated before the child became 22 years old; (2) have continued or can be expected to continue indefinitely; and (3) constitutes a substantial handicap to the child's ability to function normally in society. See Mental Health Law §1.03 (22).
What will a court consider in making this support award?
The Court has the discretion to made a support award for the adult child based on the following:
(1) Finding the child has a developmental disability as discussed above;
(2) A calculation according to the mandatory formula based on parental income (aka the “Child Support Standards Act”) and other current child support provisions in New York law; and
(3) Whether the financial responsibility of caring for the child has been “unreasonably placed' on one parent when determining the support obligation.
What “unreasonably placed” financial responsibility looks like will be at the court's discretion as the new law does not give any guidance or definition.
What if there is already a support order in place?
The law allows courts to modify prior child support orders. This means parents can return to court and petition to modify their current child support orders if the child is not older than age 26.
How will these support payments be made?
The new law allows the court to order payments in two ways. The first is for the payments to be made directly to the caregiver/petitioner. The second option is for the court to direct payments be made to a trustee of an “exception trust” (as defined by the Social Services Law and Estates, Powers and Trusts Laws) if the court finds it will “assist in maximizing assistance to the child,” which is again up to the court's discretion.
CONCLUSION
It has been barely a week since this law took effect and we expect many parents who have children with special needs may be unaware of their new legal rights under this recent change in law. We continue to monitor its impact and application to our clients. What we surely know is that this new law will have welcome impact for children who need the support.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
