Alert: New Law - Child Support For Disabled Child Up To Age 26

As of October 8, 2021 the NY Law for child support can now extend to age 26 if a child is disabled and certain conditions are met by the parent filing for the longer than normal financial emancipation period of age 21 for such a child. A long recognized problem and gap in NY Child Support Law has been improved to provide less of a burden on the parent primarily supporting their disabled child who meets the requirement of the new law in the Family Court Act Section 413-b. Parents can be divorced or never married as long as paternity is established.

The new law provides that a parent may petition for child support (even a parent with a pre-existing child support order or an order that expired at age 18) to age 26 if:

1. The child is diagnosed with a "developmental disability" as defined in the Mental Hygiene Law (examples: intellectual disability, cerebral palsy, epilepsy, neurological impairment, autism or other condition that require treatment or services similar to those types of services for other qualifying diagnosis.) The filing parent must attach to the petition a proper diagnosis of the child's developmental disability from a doctor, psychologist, registered nurse, licensed clinical social worker as examples.)

2. The disability must have begun before the child has turned 22 and is anticipated to last indefinitely.

3. The child resides with the petitioning parent;

4. The child is principally dependent upon the person seeking the extension of child support;

5. The Court will consider if the financial responsibility for caring for the child has been unreasonably placed on one parent when determining the obligation;

6. Support payments can be made to the parent or the child's special needs trusts;

7. The Court upon a qualifying determination will then apply the usual child support formula for the determination of the amount of child support.

This major change in the child support law is brand new. There will no doubt as the year(s) go by there will be countless cases in which different parts of the requirements are examined, explained and challenged. There could be issues as to the diagnosis, when the diagnosis was made, what are the special needs, what contribution whether economic or non-economic is made by each parent, how long will the diagnosis last and what other child support obligations do the parents have.

This blog is designed to alert parents of special needs children that the law has changed and that it has not been widely publicized so it is important to obtain solid legal advice from an experienced matrimonial/family law attorney to make sure that the requirements are met as this law is new to the Judges and Support Magistrates as well as to attorneys.