Long Island Family Law and Mediation Blog
Until recently, under New York law, a parent’s obligation to provide support to a child with a developmental disability generally ended at age 21. However, New York just joined 40 other states in enacting legislation that allows custodial parents of adult children with special needs to pursue child support after the child reaches the age of majority. For certain young adults with “developmental disabities”, child support may now go on to age 26. This can include child support for those that are still under 26 that were previously already deemed aged out.
The law applies to single parents of adult children over the age of 21 who (1) have been diagnosed with a developmental disability by a medical professional; (2) reside with the parent seeking support; and (3) are principally dependent on that parent for maintenance.
The newly enacted legislation uses the New York Mental Hygiene Law’s four-pronged definition of “developmental disability.” First, the disability must be attributable to (a) an intellectual disability, cerebral palsy, epilepsy, neurological impairment, familial dysautonomia, Prader-Willi syndrome or autism; (2) any other condition of a person found to be closely related to intellectual disability because such condition results in similar impairment of general intellectual functioning or adaptive behavior to that of intellectually disabled persons or requires treatment and services similar to those required for such person; or (3) dyslexia resulting from a disability otherwise satisfying this definition.
Secondly, the disability must have originated before the adult child attains age twenty-two. Parent-caregivers of children disabled after attaining the age of twenty-two cannot petition for child support under the new law. The third element of the definition is that the disability has continued or can be expected to continue indefinitely. Finally, to constitute a “developmental disability” for purposes of the new law, the disability must constitute a substantial handicap to the adult child’s ability to function normally in society.
After making a finding that the adult child resides with and is principally dependent on the parent seeking support and has been diagnosed by a medical professional with a developmental disability that meets the above definition, the new law provides the court with discretion to make an award of support. The courts have the discretion to make an award and to use the current child support guidelines as when making such award. Your Nassau County Divorce Lawyer that handles Long Island and the surrounding area cases can help. The law directs the court to make an award for support according to the child support guidelines used for children under the age of twenty-one. The court may also consider whether the financial responsibility of caring for the individual has been unreasonably placed on when parent.
The child support guidelines, specifically DRL 240(1-b), provides a formula to calculate the basic child support obligation based on the number of children and the parental income. The formula presumptively results in the correct amount of child support to be awarded. However, parties can agree to deviate from the guideline amount by written agreement. Additionally, the court can also deviate from the guideline amount if it finds the amount owed by the non-custodial parent to be unjust or inappropriate based on its consideration of a number of statutory factors enumerated in DRL 240(1-b)(f). The section (f) statutory factors are:
(1) The financial resources of the custodial and non-custodial parent, and those of the child;
(2) The physical and emotional health of the child and his/her special needs and aptitudes;
(3) The standard of living the child would have enjoyed had the marriage or household not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward the care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is substantially less than the other parent’s gross income;
(8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;
(9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof; and
(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.
As mentioned above, within the context of developmentally disabled adult children, the court shall make the calculation pursuant to the child support guidelines. Included within the child support guidelines are the statutory (f) factors to be considered in order to deviate from the presumptive amount.
As mentioned above, the court may also consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent. However, the legislature specifically delineated the time period during which the court can look to how the financial responsibility of the child was allocated. The court can only look to the time period from when the child turned 21 up until the child turns 26. However, if there was a child support order than ended when the now-adult child turned 18, the court can look to the time period from when the child turned 18 up until the child turns 26.
The new law does not expand further on the court’s discretionary consideration of whether the financial responsibility of caring for the individual has been unreasonably placed on one parent. It will be up to the courts to develop the benchmark for what it means for the financial responsibility to be unreasonably place on one parent.