By Joshua Isaacs, associate with SmolenPlevy.
Article Originally published in the Special Needs Trust Newsletter, The Arc of Northern Virginia
For parents of a child who has disabilities, there are many challenges like managing the medical and therapeutic expenses, coordinating with different service providers, and ensuring that the child receives the best and most appropriate care and support. When the parents are divorced, those challenges become more complicated with the payment of child support. Pursuant to Virginia Statute, a parent’s obligation to pay child support generally ceases when a child turns eighteen, unless the child is a full-time high school student, not self-supporting and still residing with the parent receiving support, in which case child support can be paid until the child reaches the age of nineteen. While parents can voluntarily continue to support children beyond their legal obligation, they generally cannot be compelled to do so. However, §20-124.2(c) of the Code of Virginia provides that if a child is (i) “severely and permanently mentally or physically disabled; (ii) unable to live independently and support himself, and (iii) resides in the home of the parent seeking or receiving child support”, the Courts can continue an existing child support obligation.
The permanent disability must preclude an adult child from being able to live independently and support himself. While each child’s circumstances will be reviewed individually, the Court of Appeals found sufficient evidence based on expert testimony from medical professionals regarding among other disabilities, an adult child’s cerebral palsy, cognitive impairment, as well as a stroke which rendered him with limited vision out of his left eye and the inability to use his left hand1 to continue child support. In another instance, the Court of Appeals found sufficient evidence to continue child support for a child whose mother gave undisputed testimony regarding the details of his multiple hereditary exostosis including the existence of least 22 bone tumors, the need for at least four additional surgeries and testimony that the adult child’s right arm was permanently disabled.(2) However it is not enough that the parents agree that the child is disabled. In a case where both parents agreed that an adult child had a physical disability, the Court of Appeals found a medical professional’s testimony that the child “likely should not live alone” was insufficient to conclude that the child’s disability prevented her from living independently and the evidence presented regarding speculative and uncertain future medical expenses was not sufficient to prove that the adult child would be unable to financially support herself (3).
Parents seeking a continuation of child support for a permanently disabled child must pay attention to when they initiate their action to continue the support obligation. In an unreported case a Fairfax County Circuit Court Judge held that the Court lacked jurisdiction to order an award of support for a permanently disabled adult child because the previous support obligation had terminated before the filing of the request for continued support and therefore there was no ongoing child support award.(4) The Judge held that the statute only allowed the continuance of an existing child support obligation for a permanently disabled adult child, not the institution of a new obligation. In order to preserve the ability to ask the Court to continue an award of child support for a permanently disabled adult child, the parent seeking the continuation of the award should file and serve the appropriate pleadings prior to the expiration of the existing support award.
2 Mullin v. Mullin, 45 Va. App. 289, 610 S.E.2d 331 (2005). 3 Germek v. Germek, 34 Va. App. 1, 537 S.E.2d 596 (2000). 4 Smith v. Smith, 74 Va. Cir. 378, 2007 WL 5984180 (2007).
