For the most part, a parent can only be ordered to pay child support for a limited amount of time. Usually, the extent of those limits begins at the time that a court order is instituted by a judge and ends on the 18thbirthday of your child or the date that he or she graduates from high school- whichever occurs later.
It is the case for some children that they will need to be supported past their high school years and into young adulthood or even later. Today’s blog post from the Law Office of Bryan Fagan will focus on how special needs children are cared for as they begin to “age out” of the typical child support years.
A lot of handling this issue well for parents comes in knowing what benefits are available for disabled persons as well as a willingness and ability to pay the child support as ordered by a family court judge. The amount of child support that you would be expected to pay can offer differs from the guidelines level of support that is prescribed within the Texas Family Code.
The basics of child support as they relate to individuals with special needs
To start with, the guideline levels of child support as outlined in the Texas Family Code are presumed to be in the best interests of your child. If the judge in your case, or you and your spouse in mediation, believe that setting up a child support obligation based on the guidelines would not be appropriate then you may deviate from those figures.
Your child’s age, the available financial resources for the support of your child, both you and your spouse’s ability to provide financially for the child as well as educational/medical or other costs for the child will be looked at to determine what amount of child support is fair based on the circumstances of your child and your family.
A situation that some families find themselves in is one where your child requires around the clock care by your ex-spouse, making it impossible for her to go out into the workforce and earn a living to support herself and your child. Or, if your ex-spouse can go work and earn an income, childcare for your special needs child may be significantly more than childcare for a non-special needs child. Either way, there may be an increased burden on you to pay greater levels of child support as a result.
In many cases, your child may have educational or medical expenses that are not covered by health insurance. In situations involving educational needs, those expenses will certainly not be covered by insurance. Here, you could be ordered by the judge to pay a portion of those expenses disproportionately. This means that you would shoulder a heavier burden to pay towards this care than your ex-spouse would. This could be done via an increased child support obligation or by paying money directly to the care provider.
Asking a judge to order a higher than guidelines level of support in your family law case
Your circumstances may merit an increased amount of child support. However, you will still have to argue that point to a judge if your opposing party is not willing to agree to pay you an amount of support that will allow you and your child to have the necessities of life and for your child to receive the care that he or she needs.
The beginning point for any line of argument like this needs to be your budget. You and your attorney should begin to compile as detailed a budget as possible which shows the costs associated with things like utility bills, groceries, and daycare. Also, out of pocket medical costs, therapy visits and things of this nature need to be detailed as well within the budget. If there will be changes in the future after the family law case ends those costs need to be detailed within the budget.
You can use this budget as a means to negotiate with your opposing party in mediation. He or she will likely have been doing similar work to compile a budget of their own and you two can compare and contrast those budgets to see if you can get to a workable number for child support purposes. If no settlement can be reached on child support, then you can utilize your budget in a trial as well.
What many folks do in mediation when a special needs child is involved, is to anticipate the future needs of the child as far as likely changes in the needs of your child. For example, if your child's condition is improving and is expected to no longer need a certain level of a case in the coming years, your order can reflect these changes by reducing the level of child support over time. This may encourage your opposing party to more strongly consider settling the issue of child support rather than proceeding to a trial.
How involved in your child’s life is the other parent?
It sometimes happens that you are the only parent who is playing an active role in your special needs child’s life. Some parents simply are not able to take the day to day difficulties associated with raising a special needs child. As a result, their influence over their child on a daily or even weekly basis is minimal. Another factor to be aware of is that if your child requires specialized care in your home, he or she may not be able to travel to the other parent’s home. As a result, visitation for that parent is limited to him or her coming over to your home.
These considerations are important because if your child is spending the vast majority of their time with you in your home, then the amount of child support that your opposing party needs to be pay is likely going to be higher than a guidelines level of support. Keep in mind that the guidelines level of support prescribed by the Texas Family Code assumes that the parent who pays child support will have your child around 45% of the time. If this is not the case for your family then you need to be able to make it known to the judge and to your opposing party that an increase in the child support obligation is necessary.
We have already touched on the other issue that is relevant in considering how much child support ought to be paid to you. If your caring for your special needs child necessitates your removing yourself from the workforce then this is an obvious economic factor that needs to be considered within your case. The burden is squarely on your shoulders as the caretaking parent, while your opposing party has much more freedom to earn a living and develop their professional career. Your costs daily of raising your special needs child are dramatically higher than what the other parent bears daily.
What about support for special needs adults?
If your child suffers from a mental or physical impairment, it may be the case that the impairment does not lessen in severity over time. As a result, your child may be past typical childhood age and their ability to care for themselves independently may be minimal or completely nonexistent.
In situations like this, a judge in your case would look to order child support to last for an indefinite length of time if your child requires a substantial amount of care and personal supervision due to mental or physical disability that the child suffers from. So long as this disability existed before your child's 18thbirthday and your child will not be able to support themselves, child support may be ordered past the 18thbirthday or graduation from high school.
Can only parents seek child support for an adult child?
Any parent, person who has physical custody of the child or your child him or herself may seek support after the 18thbirthday. Your child must be capable of making decisions for him or herself and be able to handle their finances as well. Many times parents will set up what is known within the family law world as a special needs trust to house these monies. This is done in many cases in. order to not cause an undue reduction in the benefits that would otherwise be made available to your child due to their disability. These benefits and resources are often income-dependent, meaning that if your child would have to declare income in the form of child support he or she may not qualify for those benefits.
You may seek child support for your adult child within a divorce case or as an independent claim within the family courts of Texas. You may have already gone to court previously and have had a child support order created. In that case, you could go right back to that court and seek to modify the prior child support order if a change in circumstance (such as the development of a severe impairment or disability) has occurred.
You need to be aware that the period in which you file the lawsuit seeking child support for an adult child is extremely important. In some cases, you will not be able to tell whether or not a young child is going to need support after their 18thbirthday. The substantial care and personal supervision standard that we just finished discussing is one that you probably will not be able to accurately predict when your child is only five years old.
If that is a situation you find yourself in, then you probably will not be able to seek an indefinite period of child support for your child. In others, you may know full well that your child will need support after their graduation from high school. You can ask the judge to find that a severe impairment or disability exists and that future support may be needed beyond the child’s 18thbirthday or graduation from high school.
This is something that you should be treated as very important. Your child's disability may not yet have impacted your ability to go out into the world and earn an income for you and your family, but there is no way to determine whether or not this will always be the case. If you lack sufficient resources in the future to provide for your family daily, you will also likely not have the income to hire an attorney to try and modify the child support orders.
The benefit of bringing this issue up in a divorce is that both your income and that of your spouse are in play as far as figuring out solutions for your child. So long as it is established that your child suffers from a disability that will allow more easily for future modifications to the child support order as needed. It would be better for your child that your ex-spouse has to come back to court and seek to modify an indefinite child support order than for you to have to come back in an attempt to create an indefinite child support order. It would be great for a judge to have to rule in the future that because your child can support themselves, support is no longer needed.
Questions about support for an adult child? Come back to our blog tomorrow
In tomorrow's blog post from the Law Office of Bryan Fagan, we will pick up where we left off today by discussing additional topics related to supporting for adult children in Texas. If you have any questions about the subject matter that we discussed today please do not hesitate to contact our office. We offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to ask questions of one of our licensed family law attorneys and to receive direct feedback about your specific circumstances.