by Sherry A. Bishko Attorney
Custodial Parents of Developmentally Disabled Children Over the Age of 21 May Be Eligible for Child Support Until the Child Attains the Age of 26
The age of emancipation in New York State for child support is 21. This means that when a child turns 21, unless both parents agree otherwise or unless sooner terminated, a non-custodial parent no longer is obligated to pay the custodial parent child support. But what if a child is developmentally disabled?
Parenting never ends – especially for parents of developmentally disabled children. In 2021, the New York State Legislator recognized the challenges parents of developmentally disabled children face and that such challenges and responsibilities do not end when their child turns 21. In fact, the responsibilities often become more intense for parents who are caring for an adult disabled child. At 21, a developmentally disabled child is no longer eligible for school programs and the overwhelming job of care giving often falls to one parent.
What does the law provide? Domestic Relations Law 240 Section d is applicable to a custodial parent of an adult dependent child between the ages of 21 and 26 (or 18 and 26 if a child is emancipated at 18) who has been diagnosed with a developmental disability. The developmental disability must be supported by a diagnosis and accompanying report of a licensed medical professional. Additionally, the developmental disability is defined by the criteria set forth in the New York State Mental Hygiene Law Section 1.03.
Is child support automatically extended for an adult disabled child? No. The custodial parent must petition the court to obtain and order extending child support for their adult disabled child.
What criteria and factors are used to determine support for an adult disabled child? The adult disabled child must reside with the custodial parent seeking support and be principally dependent on the custodial parent for their maintenance. Additionally, when determining a child support award from a non-custodial parent to a custodial parent for an adult disabled child, the court has broad discretion to look at factors such as the financial responsibility incurred by the custodial parent in caring for the child and whether the financial responsibility has been unreasonably placed on one parent.
If you are the parent of a developmentally disabled child and are divorcing or negotiating a support order and/or your developmentally disabled child is approaching emancipation, we are here to help. Lazar Schwartz & Jones, LLP (845-896-9651) can assist you in navigating this important and complex issue.
