Emancipation and child support issues for children with disabilities pose challenges for parents

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A few years ago, the legislature passed a law that changed the Age of Emancipation in Indiana. Children are emancipated at 19. The legal effect of this is that parents no longer have a legal obligation to financially support children once they reach the age of 19. But what if a parent has a disabled child? The Indiana Code Emancipation Control Law § 31-16-6-6 which states in the relevant part:

(a) The obligation to provide for the needs of a child under this chapter, which does not include support for educational needs, ceases when the child reaches the age of nineteen (19) years of age, at Unless one of the following conditions occurs:

(1)… ..

(2) The child is incapacitated. In this case, child support continues during incapacity or until further court order.

Child support, or a legal obligation to provide financial assistance, can continue for the period the child is disabled beyond 19 years of age. To do this, the parent who opposes emancipation has the burden of proving to the court that the child is incapable. It requires more than just being labeled or classified as a person with a disability. Receiving education allowances or state / county assistance does not automatically end the investigation of what disability means in relation to child support and emancipation.

“[I]incapacity “is defined by case law as” the quality or state of incapacity, incapacity; lack of physical or intellectual power, or of mental or legal qualification; inability; unable; disability; incompetence. “Liddy v. Liddy, 881 NE 2d 62 (Ind.Ct.App. 2008), citing Bole v. Civil town of Ligonier, 161 NE2d 189, 194 (Ind. Ct. App. 1959). Disability has also been defined in the context of empowerment as “it is clear that no empowerment occurs when due to illness or injury a child becomes so physically or mentally disabled that he can no longer support himself and has to stay at home with a parent ”. Baker c. Baker, 488 NE2d 361, 366 (Ind.Ct.App. 2008) citing Zakrocki v. Zakrocki, 60 NE2d 745 (Ind. Ct. App. 1945); see also Caddo vs. Caddo, 468 NE2d 593, 594 (Ind.Ct.App. 1984).

There are cases where this inability seems obvious such as when a person has an IQ in the moderately retarded mental range, a person has a physical or psychological disorder which cannot be controlled with medication and requires frequent hospitalization and when a no one has a significant depreciation limb. But what about cases that are not so obvious, like someone with a learning disability or falling into the elusive autism spectrum? These grayer cases are subject to judicial decision. Judges also have the option of finding that a person is partially emancipated and ordering the continuation of some form of child support. Generally, judges seek to ensure that the person has insurance, when it is available to the parents.

Does a “victory” in court limit available resources?

There are circumstances where a person with a disability could receive greater financial assistance through Social Security and other state / county assistance programs if the parents agree that their adult child is emancipated. The existence of a child support order may limit funding to a person who may be incapacitated. A child support order can also make the adult child ineligible for benefits.

Protect your child’s best interests

Whenever children are involved in a family law case, the only question that should guide parents is “what is in the best interests of my child?” “. Whether you choose to pursue empowerment so that your child can have the opportunity to receive government assistance will depend on your unique circumstances. Regardless of your choice, you should seek the help of a family lawyer who has experience in complex child support matters. I have a full service family law practice and have advocated on behalf of my clients for many years in child support, custody and related matters.


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