CAN YOU LOSE CHILD SUPPORT FOR YOUR ADULT CHILD WITH DISABILITIES?

The answer is “yes” and “no.”   The lives of parents caring for adult children with disabilities is already burdensome, and this change in the law adds an additional barrier such parents will have to overcome, but it will not bar them from obtaining the payments they may be entitled to.

New Jersey passed a law last year that takes effect next month – February 2017 – that may disrupt payments from an ex-spouse that are necessary to care for a child with disabilities.   Under the former law, the State provides strong enforcement action under its “Probation” department, that could include wage garnishment and even potential incarceration.  

The new law ends any and all “child support” obligations in divorced families once the child reaches the age of 23.  Thus, the State will no longer provide probation enforcement beyond the child’s 23rd birthday.  This applies to a child with disabilities in the same manner as to any other child. Custodial parents whose children are now approaching the age of 23 will now receive a notice from the State designating the upcoming birth date as the date upon which the support payment obligations that they have been relying will end. 

However, custodial Parents of  children with special needs who require such support should not panic.  And non-custodial parents who are now required to provide such support should not be misled into thinking they can now abandon those obligations.  

Instead, the statute recognizes that persons with disabilities may require financial “maintenance” beyond age 23 and that parents of such persons may be responsible to provide financial “maintenance” as long as necessary for such children.    The big difference beyond the semantics of “child support” vs “maintenance” is that the probation department will not address or enforce “maintenance,” and custodial parents will instead have to seek such payments by way of an additional process in Family Court.

Such additional process can result in a Court Order requiring the noncustodial parent to provide “maintenance” payments, and those payments may (or may not) be in the same amount as the previous “child support” payments.  Once such an Order is obtained, the child or custodial parent will have access to the enforcement powers attendant with any Court Order, but will no longer be able to rely on the exceptional enforcement powers of the Probation department.   (A link to the new statute can be found here:  http://www.njchildsupport.org/getattachment/Services-Programs/Custodial-Parents/Termination/Emancipation/Termination-of-Child-Support-Public-Law-2015,-Chapter-223_.pdf.aspx)

If you are a divorced parent who has a child with a disability who is approaching or over the age of 23, you should consult with a knowledgeable attorney as to the impact this new law may have on your rights and obligations.  

 

 

What Level of Educational Benefit Must Schools Provide to Children with Special Needs?

An important case is currently before the U.S. Supreme Court that could cause significant harm to children across the nation who need special education services, or it could raise the bar for children with disabilities in areas that currently provide a lesser level of services than others.

Currently, in many areas of the country — including Pennsylvania, New Jersey, and Delaware — schools must provide an education that rises to a level of “meaningful benefit.”  Meaningful benefit is defined as not maximizing a student’s potential, but nevertheless providing significant learning in light of a child’s aptitude.  Thus, in areas such as ours, it is not sufficient that a child makes some progress under his program. Instead, the progress must be “meaningful” and involve significant learning.

In other areas of the country, however, the legal standard is far lower.  Schools in those areas must merely provide “some educational benefit” to children with disabilities.

The distinction exists due to different Courts interpreting the top Supreme Court cases on this issue in differing ways.  Courts applying a very literal interpretation have come up with the “some benefit” standard; Courts applying a more in depth analysis have established the “meaningful benefit” standard.

The distinction is significant.   Under the “some benefit” standard, children could be denied services in their most significant areas of need, based on the argument that they made “some progress” in some lesser area of need.  Imagine a child in high school who can barely read due to Dyslexia, and who struggles in math but is only one grade level behind — being denied effective reading supports because he has made “some” progress in math.

It certainly seems counter-intuitive that the IDEA would countenance as sufficient the provision of educational services that are NOT “meaningful” to a child.  But this is a prevailing interpretation of prior IDEA case law in several jurisdictions around the country.

Presently before the Supreme Court is a case that will require the Court to select one or the other approach, or to fashion a new approach of its own.   You can find access to the court papers in that case here:

Endrew F. v. Douglas County School District

I certainly support that an increased level of services must be required in the “some benefit” jurisdictions, and hope that the Supreme Court will act responsibly now that it has the opportunity to provide a single standard for all of our children with special needs across the nation.

Understand, however, that there is an equal risk that the Supreme Court rules the other way, and severely cuts the level of educational benefits children in our jurisdiction are currently entitled to.   If that should occur, our only recourse will be to convince the federal legislature to take action and make clear in the statute itself that it is intended to require that children with special needs receive an education that is at least “meaningful” to the child.