New York State extended the duration of child support for developmentally disabled adults to age of 26 becoming the 41st state to extend support past the age of 21. Parents of developmentally disabled children maintain the burden and expense of caring for their children well passed the time they would have expected children to be on their own caring for themselves, and even a family of their own. Caring for adult children with such severe disabilities is extremely stressful and can also be quite expensive.
Divorce is a common reality for many families. The extreme stress of caring for a child who is intellectually or developmentally impaired is often too much for a couple to withstand leading to divorce. The responsibility for caring for a disabled child does not end with divorce. If anything, the divorce will put more of a financial strain on the family.
While 18 is the age of majority for custody, visitation, and other purposes, child support may be paid until the age of 21. The exceptions are if the adult child is married, self-supporting, or is in the military.
For parents with severely developmentally disabled children, the responsibility for care does not end at the age of 21, so New York followed the lead of the majority of states and extended the duration of child support by an additional 5 years.
At a time when the major political parties seem to be further apart than at any other time in our nation’s history, it is important to note that this bill had strong bi-partisan support as it worked its way through the process of making it to the Governor’s desk for her signature.
Extending child support for an additional five years is not automatic, especially of the parent responsible for paying child support is not open to making further child support payments. It is up to the custodial parent to show that their child qualifies for extended support under the new law.
The custodial parent of caregiver may petition the court for extended support of a “developmentally disabled” child who resides with and is “principally dependent” on the petitioner.
When dealing with the courts or any legal process, it is best to work with a qualified and experienced attorney as the law depends on strict definitions of each of these terms. The new law derives the definition of developmentally disabled from the glossary of terms provided for in Section 1.03 of Chapter 27 (Mental Hygiene) of the consolidated laws of New York State.
The requirements for having a petition granted include:
- The disability must have originated prior to the child turning 22 years old.
- The disability is expected to continue indefinitely.
- The disability is a substantial enough to inhibit the child from functioning normally in society.
- The law covers, but is not limited to cognitive, developmental, and physical disabilities.
The court has the discretion of deciding on the petition based on several criteria, including the disability of the child, a calculation of the parental income based on the mandatory formula used for such support and whether the financial burden for caring for a disabled child is disproportionately placed on one parent.
If there are court orders related to child support payments already in place, the new law does allow for a parent to petition the court to have the child support order modified based on the new law. The petition must be brought to the court before the child turns 26 years old. A parent may not petition the court for back payments after the child’s 26th birthday.
While many of the terms are defined in current law, there are aspects to the law that are open for interpretation by the court, so it is important to discuss your particular case with an experienced Family Law attorney. Anthony LoPresti is a leading Family Law attorney in Nassau County with over 30 years of experience and is ready to help you navigate this new law to help you receive the monetary support you require to care for your disabled child. Call our office at (516) 252-0223 for a consultation.