When a divorce or custody case involves a child with special needs, parents and the courts have their work cut for them. Not only must they establish the nature and validity of the child’s special need, but they must also fashion a possession and access schedule and a child support level that meets the child’s needs.
A child’s special needs under the terms of the Family Code uses of different criteria that those set forth in the Medicare or Social Security definitions. The Texas Family Code requires that a child be substantially incapable of self-care or independent work/living due to a medical or mental health problem. Some conditions that impair a child’s functioning may or may not meet those specifications; parents often quarrel over whether their child should receive support for ADHD, for example. That’s why the court determines special needs case by case, evaluating each individual child’s medical and educational records. A parent seeking child support for a child’s special needs support must collect reports and statements from various educational and health practitioners such as school counselors, occupational therapists, family physicians and mental health providers.
Once your child’s special need has been recognized the court, you still must allocate expenses, including medical treatment and the costs of traveling from specialist to specialist between the parents. You must also consider whether each home the child spends time in is suitably equipped with the proper access routes and medical equipment – and this can have a serious impact on the possession schedule.
After these calculations and determinations have been made, the court can then grant child support based on the special need in question. The judge then has the power to order child support beyond the age of 18 provided that the disability was known before the child’s 18th birthday. You can take your case to the court even after the child’s 18th birthday, but you’ll still shoulder the burden of establishing that the condition was known before that birthday. At that point, the court may order indefinite support or assign a specific duration to the support period. If the medical and mental practitioners believe that the child’s condition might improve the court can extend the support period until the 19th birthday, or for an additional 12 months, and then review the support situation again.
Unlike traditional child support, support orders for children with special needs is not subject to the normal Texas Family code guidelines and therefore may have substantial impact on a family’s budget. A court may order up to 100% support of a child with special needs.
Special needs cases require special expertise. Contact our family law office to discuss your child’s situation with us.