This, the next article in our series on special-needs children and the law, deals with child support and how you can keep getting it for your child even after she/he has become an adult.
Many children are afflicted with mental disabilities that severely impair their ability to learn and/or function in society. The care and parenting of special-needs children requires support above and beyond that needed for children without special needs. Providing such support is hard enough when a child has two parents in the home; the problems are magnified if those parents split up, especially if the role of caretaker is largely restricted to one parent.
In a divorce or parentage case, a child support obligation is created and applied pursuant to a statutory guideline. It is based entirely on the net incomes of the parties and the time share exercised. With special-needs children, however, the guideline can be a starting point rather than the final number.
This can become particularly important in a case where one parent has been left with virtually all of the custody, the other refusing to be involved. The costs of medication, facilities and doctors can get prohibitively expensive, and without a Court order, the custodial parent is, by default, stuck with paying those expenses. Pursuant to California Family Code (CFC) §4062, both parents are on the hook to contribute equally to pay a child’s medical expenses. Per CFC §4062(b)(1) and Marriage of Drake, (1997) 53 Cal.App.4th 1139, 1150, the Court can also equally divide costs associated with a child’s special needs.
A child’s special needs generally don’t disappear upon that child reaching adulthood. Those emotional or mental disabilities can cause a child to become “adult-disabled” and unable to earn a living. The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means (says CFC §3910(a)).
What does the law mean by “incapacitated from earning a living”? The landmark case is Chun v. Chun, (1987) 190 Cal.App.3rd 589, in which the adult-disabled child was emotionally (not mentally) disabled operating at the level of a 12-year old, the Court found. As for “without sufficient means,” this was settled in Drake (at page 1154), as a determination of the likelihood the child will “become a public charge.”
If your child fits that definition, then you can ask for child support not to terminate upon the child turning 19 (or graduating high school at age 18–whichever comes first). Instead, you can request that the order continue indefinitely in recognition of your child’s condition.
A child’s worth is not linked to her/his perfection of health. You love your child, issues and all. But there’s no question that being the sole custodian of a special-needs child is hard work, too. There is no reason you should have to go it alone, even if the other parent would like it that way. Know your rights and get the support your child deserves.
Disclaimer: The information provided in this blog is for general informational purposes and it should not be relied on as legal advice. An attorney-client relationship is not formed by reading the information on this site and can only be formed by a written agreement that sets forth the scope of the relationship and the fee arrangement. There is no substitute for expert legal assistance. If you need representation, schedule a consultation with the Barefoot team.
Written by Gideon Marcus