Divorce, Custody, and Child Support for Parents of Children with Special Needs (Part I)

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November 2, 2018Author: Curran Moher Weis

Divorce, Custody, and Child Support for Parents of Children with Special Needs (Part I)

By: Demian J. McGarry, Esq., and Nicole Grejda, Esq.

This is the first in a series of blogs Curran Moher Weis attorneys will be publishing on divorce and child support involving children with special needs. We invite you to bookmark our blog and check back regularly for further input on this important topic.

If you have a child with special needs, you already face a great deal of unique challenges. Those challenges become increasingly complex if you are also navigating a divorce and/or a child custody, visitation, or child support determination in Virginia.

At Curran Moher Weis, we believe that when a marriage or partnership involving children dissolves, it is of the utmost importance to consider solutions that benefit the child(ren) – especially those with special needs. That starts with ensuring you have an experienced family law attorney who understands the complexities of these issues and can help you understand them as well. This blog series will shed light on this special area of focus for our firm.

Custody and Visitation of Children with Special Needs 

In divorce cases in Virginia, the court is asked to determine a custody and visitation schedule that is in the best interests of the child.  When a child has special needs, several points of consideration factor into the court’s decision.

One factor the court must consider is “the age and physical and mental condition of the child, giving due consideration to the child’s change developmental needs.” This means the court will consider how experienced and knowledgeable a parent is regarding the administration of medication to the child, how involved a parent is in the child’s necessary services, such as individualized educational programs (IEPs) and occupational, physical, or mental health therapy, and how much time a parent can devote to the daily care of the child.  If parents are conflicted about how to care for a child, the court may consider which parent has acted in the child’s best interests to that point, and which parent articulates the best plan for the child going forward.  The court will also consider how prepared and able each parent is to have the child with him or her.

Child Support Involving Children with Special Needs 

The court is commonly asked to determine the appropriate amount of child support payable by one parent to the other for the benefit of the child, under “guidelines” set forth in Virginia Code Section 20-108.2.

The amount of support calculated with those guidelines is presumed correct unless there is relevant evidence that a deviation would be in the best interest of the child based on factors set forth in Section 20-108.1(B). One factor that must be considered pursuant to Section 20-108.1(B)(8) is “any special needs of a child resulting from any physical, emotional, or medical condition.” A court may consider, for example, the cost of medication, medical equipment, nursing services in the home, medical transportation, and the cost associated with treatment plans.

Although child support typically terminates when a child reaches the age of majority or otherwise emancipates, for a special need child, child support can be extended for significantly longer.  For example, pursuant to Virginia Code Section 20-124.2(C), the court may order that child support continue to be paid for any child over the age of 18 who is: (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 […]; (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support.

While we’re sharing these codes of Virginia law as information to know about these issues, don’t worry about remembering them.  That’s our job.

Special Needs Trust/ABLE Account 

The court may also order that child support payments be paid to a Special Needs Trust or an ABLE account.

Special Needs Trusts are often created to address the unique needs of the child and to ensure that child support payments or other funds are used to meet those unique needs. Special Needs Trusts also provide an additional benefit: if money is held in a Special Needs Trust for the benefit of the child instead of being paid directly to the child to meet his or her living expenses, then the child is not deemed ineligible to qualify for government benefits such as social security income and/or Medicaid. A child will therefore be able to receive support from the Special Needs Trust in addition to any applicable government benefits.

An ABLE account is a tax-advantaged savings account for a person who becomes disabled prior to the age of 26. As long as the funds held in the ABLE account are used for “qualifying expenses,” then the earnings on the account investments are not taxed. Similar to a Special Needs Trust, funds in an ABLE account do not risk the child being deemed ineligible to qualify for government benefits.

Supplemental Security Income (SSI) 

Divorcing parents of children with special needs, or those navigating a child support matter, also need to be aware of the numerous public resources that may be available to them.  Parents may receive Supplemental Security Income (SSI) on behalf of their physically and/or intellectually challenged child.  SSI:

  • Is designed to help aged, blind, and disabled people, who have little or no income; and
  • Provides financial assistance to meet basic needs for food, clothing, and shelter.

Parents also need to be aware that in Virginia, a custodial parent’s receipt of SSI benefits for a special needs child does not entitle the non-custodial parent to a credit or reduction in their child support. SSI benefits received for a child are designed to supplement other income, not substitute for it.

Medicaid Waivers 

Medicaid waivers can be a critical element in the care plan for a physically and/or intellectually challenged child. A Medicaid waiver is a provision in Medicaid law which allows the federal government to waive rules that usually apply to the Medicaid program. The intention is to allow individual states to accomplish certain goals, such as reducing costs, expanding coverage or improving care for certain target groups. Thanks to these waivers, states can provide services to their residents that wouldn’t usually be covered by Medicaid. For instance, in-home care for people who would otherwise have to go into long-term institutional care.

In Virginia, there are six different Medicaid waiver programs, three of which are relevant to minors:

  • the CCC Plus Waiver;
  • the Intellectual Disability Waiver; and
  • the Individual and Family Support Waiver.

Coverage under these waivers may provide for in-home attendant care, respite care and nursing care at various levels.  Attendant care is direct support in the home and community with personal assistance, activities of daily living, using the community, taking medication and care of other health needs. They can either be provided by an agency or by consumer-directed services. Consumer-Directed Services offer the individual/family the option of hiring workers directly, rather than using traditional agency staff.  Respite care services provided for unpaid caregivers (e.g. parent) of eligible individuals who are unable to care for themselves that are provided on an episodic or routine basis because of the absence of or need for relief of those unpaid persons who routinely provide the care.  To put it simply, respite care provides the much needed physical and mental health breaks for the caregiving parent so they can leave the home.

Parents should maximize benefits available to them under the waiver as coverage can significantly reduce the out-of-pocket unreimbursed medical expenses that they may otherwise be obligated to pay under a child support order. The scope of the unreimbursed medical expenses statute contained in Virginia Code §20-108.2(D) is broad enough to cover attendant and respite care.

Make Sure Your Attorney Has Expertise in Special Needs Cases

Special needs issues in divorce, custody and child support situations continue to increase. Often, these issues create a mine field for families trying to navigate this very complicated and niche area. Consultation with a family law attorney who is familiar with special needs issues can ensure that your interests are protected and objectives maximized.

Curran Moher Weis attorneys are dedicated to supporting parents of children with special needs, and have decades of experience successfully guiding them through these complex matters. Contact us to set up a consultation, and stay tuned for future posts, as we help you learn more about this important topic.

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