Child Support for Special Needs Children

Posted on Dec 30, 2013 by Katie Carter

Sheera Herrell is one of our attorneys at Hofheimer Family Law, and one of her biggest concerns is child support for special needs children. In fact, her article, “Child Support for the ‘Emancipated’ Special Needs Child,” written along with Nathan J. Olson, was published this year in a number of reputable publications, including Family Law News (a newsletter published by the Family Law Section of the Virginia State Bar and disseminated to all Virginia State Bar members) in Fall 2013, and E-Parent Magazine, a resource for parents with children with special needs. To read the article in its entirety, click here.

Sheera writes the article to discuss a major problem in Virginia law: what happens to special needs children in Virginia once they become emancipated? In Virginia, child support for children with special needs is a complicated area of law. The way our current statute is written, the law only provides for child support to be continued past the age of eighteen for a child who is severely and permanently disabled, not self-supporting, and lives in the home of the parent receiving support. (Virginia Code 20-124.2)

The word continued is key here. Why? Well, it implies that a new child support award can’t be determined after the age of eighteen if there wasn’t a previously existing support award in place. So, as Sheera writes, “[t]he ability to get child support for a disabled adult child is wholly dependent upon the timing of his or her parents’ separation and/or divorce.”

For a disabled child whose parents get divorced when he was, for example, ten years old, a child support award can (and will) be established, much the same as it would be established for any child born during the marriage. After that child turns 18, so long as the child qualifies based on the statute, meaning that he or she is (1) severely and permanently disabled, (2) not self-supporting, and (3) lives in the home of the parent receiving support, the child could continue to receive support. The problem arises when parents of a disabled child separate or divorce AFTER the disabled child turns 18. In that case, because there wasn’t an already-established child support order (because the parents were together and were both supporting the child), under Virginia law, support can’t be ordered.

So, child support can be awarded after the age of eighteen for a disabled child whose parents divorced or separated prior to the child’s emancipation, but for a disabled child whose parents divorced after he or she reached the age of majority, the law does not support an award of child support, even though neither child has any control over the parent’s relationship.

About half the states have laws for dealing with this exact scenario, through either their statutes (the official laws on the books) or their common law (precedent that has been established over time by the courts). The other half, like Virginia, don’t really deal with this issue at all.

Of course, this is primarily an issue in a limited number of cases. Of the parents with a disabled child who get divorced after their child reaches the age of 18, most of them are willing to continue to provide a certain level of support to their child, whether the law requires it or not. Still, as of today, this is a a problematic area of the law.

If you’re the parent of a disabled child and you’re thinking about divorce, you should definitely be aware of the gap in the law. Once you and your child’s father separate, you’ll want to get a child support order in place immediately, especially if your child is nearing the magic age of 18. Once you have an initial support award in place prior to the child’s eighteenth birthday, you’re safe. The court does have the authority to continue an already-existing child support award for a disabled child, it just can’t make an initial award after that point.

If you fall into this category, and you’d like support for your now-emancipated child, there isn’t a whole lot that can be done to force your child’s father to help support your child. You can get your child’s father to agree to provide a certain measure of support, but the court doesn’t have the authority to order that he do it. Probably your best option would be to do some research into how your child might qualify for and receive disability.

It is frustrating to think that, because our current law doesn’t allow a new child support determination to be made past the age of 18, these children become wards of the state and depend on public assistance for support when their remaining parent can’t afford to support the child on their own. It’s probably safe to say that the nationwide trend is for states to find ways to award child support for two reasons: first, so that the state doesn’t have to provide support, and, second, so that no parent can just financially abandon a special needs child.

If your child has special needs, it’s critical to be aware of your state’s laws on child support. For more information on Sheera Herrell and to read her full biography, click here. To make an appointment with Sheera, or any of our other experienced divorce and custody attorneys, call (757) 425-5200.