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The ongoing costs for a child with special needs can be exorbitant and when you factor in an increased likelihood of divorce and two households to support, the financial pressures, not to mention the emotional pressures, are overwhelming. Until this month, child support for all New York City children ended at age 21, regardless of whether or not a child was able to support himself at age 21. Now, a new law was passed unanimously this month by the New York legislature that allows a custodial parent to seek child support for disabled adult children or any child over the age of 21 and that support will continue until the age of 26. New York is now 41st the state to extend aid to these children.
It is clear that this law will have a huge impact on the lives of parents and children in this state. While it is too early to know how the courts will apply this new law, the following describes what we know about this new law at this point.
What does the law do?
The law amends the Family Relations Act and the Family Court Act to allow custodial parents or guardians of children with “developmental disorders “ ask a court to collect child support until the child is 26 years old. See Family Relations Act Â§240-d; Family Court Act Â§ 413-b.
Who does the law apply to?
One parent who can file a petition is the custodial parent of a “developmentally disabled” child and that child is “primarily dependent” on the custodial parent and resides with the custodial parent.
The child must be diagnosed by a health professional with an intellectual disability. An intellectual disability is as defined by mental health law, which includes intellectual disability, cerebral palsy, epilepsy, neurological impairment, familial dysautonomia, Prader-Willi syndrome or autism. The disability must: (1) originate before the child reaches the age of 22; (2) have continued or are expected to continue indefinitely; and (3) constitutes a substantial handicap to the child’s ability to function normally in society. See Mental Health Act Â§1.03 (22).
What will a court take into consideration when awarding this support?
The Court has the discretion pay alimony for the adult child on the basis of the following:
(1) Find out that the child has an intellectual disability as indicated above;
(2) A computation under the mandatory parental income formula (aka the âChild Support Standards Actâ) and other current child support provisions in New York law; and
(3) Whether the financial responsibility for the care of the child has been “unreasonably placed” on a parent in determining the support obligation.
What âunreasonably placedâ financial liability looks like will be at the discretion of the court, as the new law does not provide any direction or definition.
What if there is already a support order in place?
The law allows courts to vary previous child support orders. This means that parents can go back to court and ask to change their child support orders if the child is not over 26 years old.
How will these support payments be made?
The new law allows the court to order payments in two ways. The first is that payments are made directly to the caregiver / applicant. The second option is for the court to direct payments to a trustee of an “exceptional trust” (as defined by social services law and the laws on estates, powers and trusts) if the court believes that this “will help to maximize assistance to children”, which is still at the discretion of the court.
It has been barely a week since this law came into effect and we expect that many parents with children with special needs will not be aware of their new legal rights under this recent change in law. We continue to monitor its impact and application to our customers. What we surely know is that this new law will have a welcome impact on children who need support.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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