New NYS Law Obliges Child Support to Developmentally Disabled Children Up to Age 26

December 13, 2021
By Clifford Petroske

While parents are not ordinarily obligated to support children in New York beyond the age of twenty-one years, the majority of U.S. states have legislated exceptions for children whose mental and/or physical disabilities prevent them from adequately caring for themselves by their own means.

On October 8, 2021, New York joined those states after Governor Kathy Hochul signed Assembly Bill A00898B into law. The new law adds a new section to New York’s Domestic Relations Law and also to the Family Court Act with the following language:

a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled.

Assemblywoman Carrier Woerner, who co-sponsored the new law, noted after its passage that “the needs of dependent children with developmental or physical disabilities do not simply disappear when they reach age 21. This legislation will enable single parents of adult children with a disability to pursue continued child support up to the age of 26 when the child’s disabilities prevent them from adequately caring for themselves.”

Determining Developmental Disability

The criteria to be used by the courts in determining whether an adult child is developmentally disabled are found in New York State’s Mental Hygiene Law, which defines Developmental Disability as:

a disability of a person which:

(a) (1) is attributable to intellectual disability, cerebral palsy, epilepsy, neurological impairment, familial dysautonomia, Prader-Willi syndrome or autism;

(2) is attributable to any other condition of a person found to be closely related to intellectual disability because such condition results in similar impairment of general intellectual functioning or adaptive behavior to that of intellectually disabled persons or requires treatment and services similar to those required for such person; or

(3) is attributable to dyslexia resulting from a disability described in subparagraph one or two of this paragraph;

(b) originates before such person attains age twenty-two;

(c) has continued or can be expected to continue indefinitely; and

(d) constitutes a substantial handicap to such person’s ability to function normally in society.

The new law specifies that a finding of such developmental disability “shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under Title 8 of the Education Law, and acting within their lawful scope of practice.”

Courts Have Discretion to Look Beyond the Presumptively Correct Amount of Support

The new law grants courts significant discretion to determine support levels beyond the mandatory formulas provided for in Section 413(1-b) of the Family Court Act, which sets the basic child support amount at a fixed percentage of the parents’ combined income:

The Court may consider whether the financial responsibility of caring for the individual (child) has been unreasonably placed on one parent when determining the child support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.

The law specifies that payment can be made in two ways: directly to the custodial parent, or to an Exception Trust set up to administer the allowance for the child.

Petroske Law’s Take
New York’s new law is designed to address a significant social ill: the plight of parents with developmentally disabled adult children whose support payments are insufficient to properly care for them. Because the costs of meeting the needs of a developmentally disabled child can run into millions of dollars over the child’s lifetime, extending the support payment period to age 26 is a good and fair thing that will ease the financial pain for many struggling parents.

As noted by Assemblywoman Mary Beth Walsh, who drove the bill from conception to reality over the past two years, “it is incredibly challenging for families to provide the best possible support and services for their children and adult-children with developmental disabilities, even more so in a single-parent living situation. Unfortunately, it is not uncommon for divorce to occur in a household with a child who is differently abled. However, just because an age of majority has been reached does not mean that the child no longer needs support. This legislation aims to extend the responsibility for both parents in order to ensure that the day-to-day needs of their dependent child continue to be met.”

While the purpose of New York’s new law is undoubtedly laudable, it remains to be seen how exactly courts – to which the law grants broad discretion in terms of deciding whether a child meets the disability criteria and in terms of deciding “whether the financial responsibility of caring for the individual (child) has unreasonably been placed on one parent” – will rule once  cases appear before them. What facts will a lawyer need to show to the court to establish that “the financial responsibility of caring for the individual (child) has been unreasonably placed on one parent?” What facts would rebut such a claim? How exactly will the new “beyond 413 (1-b)” support obligations be implemented? If a parent with an autistic adult child petitions for extended/expanded support, where on the autistic spectrum must a child be located in order to secure such support?

These and other unanswered questions will undoubtedly come up as news of this new law percolates through society and parents believing they have been shortchanged bring their cases to court.

If you are a parent with an adult disabled child seeking answers as to whether you are entitled to extended/expanded child support payments due to the passage of New York State’s new law, please contact us. We will be happy to recommend the best legal and practical approach to achieving equity for you, your child, and your family.