Deviation From Guidelines
The starting point for determining child support in all Virginia cases is Virginia Code § 20-108.2, which sets forth our statewide child support guidelines. The guidelines provide a child support amount based on the incomes of the parties and any costs incurred for health care coverage and work-related child care. While such a straightforward formula may be appropriate under ordinary circumstances, custodial parents of autistic children may find themselves incurring additional costs not covered by the guidelines.
In those circumstances, the custodial parent may want to seek a deviation in support based on the factors listed in Virginia Code § 20-108.1, particularly the factor which allows the court to deviate from the guidelines based on the “special needs of a child resulting from any physical, emotional, or medical condition.” In the case of a child with autism, this factor normally requires evidence of additional costs incurred as a result of the autism, such as additional medical treatment, therapy or special education. For older children, these costs can also include job training and social skills development. Courts look at how such expenses may affect the child support obligation and whether such a deviation would be in the best interests of the child.
Continuation of Support Ordered For a Minor Child
Another concern for parents of children with autism is whether or not the support will continue beyond the age of 18. The normal rule in Virginia is that child support terminates at the age of 18 unless the child is still living at home, not self-supporting and a full-time high school student. In those cases, support would then continue until either the child turns 19 or graduates from high school, whichever occurs first. Depending on where the child is on the autism spectrum, a child with autism may need need to live at home for a considerably longer period of time. And of course some autistic kids may never be able to live on their own. So what is a parent facing the possibility of losing child support for an older autistic child to do?
Virginia Code § 20-124.2 provides that courts may order the continuation of support* for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, (b) unable to live independently and support himself, and (c) resides in the home of the parent seeking or receiving child support. In addition, Virginia Code § 20-61 requires parents to provide support for children of any age who are “crippled or otherwise incapacitated from earning a living.” Depending on where they are on the spectrum, many autistic children may indeed be unable to live independently and support themselves. In these cases, the custodial parent will want to have the testimony of either the child’s treating physician or therapist to show that the condition is permanent and that the child is unable to live independently.
Since the statute authorizes courts to order the continuation of support past age 18, it is essential that any parent seeking support for an adult child be proactive. For most autistic children who are going to be unable to live independently as adults, the need for lifelong support has become clear by their teenage years. In such cases, the custodial parent should petition the court for a continuation of support while the child is still a minor, to avoid having child support “lapse” upon the child’s turning 18.
Custodial parents who do not ask the court to continue child support until after the child’s 18th birthday can still seek a “continuation” of support, but the longer they wait the more difficult the task will become. In these cases, the court will look at the specific facts of the case to see whether there can be a continuation of support. The relevant facts will include any prior agreements between the parents as to the continuation of support, whether child support has been ordered for any other children, and the length of time since support was last paid by the noncustodial parent.
There is no bright line rule in Virginia as to what period of time constitutes a break in support long enough to prevent the court from considering a request for a continuation of support, so filing as soon as possible is the best way for the custodial parent to increase the likelihood of success in continuing support. Waiting even a few months can seriously jeopardize the custodial parent’s ability to have support awarded for an adult child.[Update #1: In its January 14, 2014 opinion in Mayer v. Mayer, the Virginia Court of Appeals provided some much-needed guidance regarding continued child support for disabled children under Virginia law.] [*Update #2: Virginia Code § 20-124.2 has now been changed to provide that courts may order that support be “paid or continue to be paid” for these children. See Child Support for Children with Disability for more information on the current state of the law in Virginia.]
When Parents Separate After the Child Is an Adult
What about cases where parents of an autistic child who is already over the age of 18 divorce? In these cases, there is no existing child support order for the court to continue. If the child must continue to reside with one of the parents, then that parent will face a unique challenge. To seek child support from the other parent, they will face the dual burden of showing that the child is unable to live independently and that the other parent has been supporting the child prior to the separation and divorce. Under the Common Law and the previously mentioned Virginia Code § 20-61, a parent has a duty to support a disabled child unable to live independently; however, the burden of proof will be on the requesting spouse to show that this duty justifies a continuation of support.
If you have a child with autism or other special needs and are facing a divorce, you should consult with an attorney experienced with the special issues that may arise in your case, starting with the possibility of deviation from the statewide guidelines. If your child seems unlikely to be able to live independently and support themselves, you should request a continuation of support before your child’s 18th birthday. In all cases, by acting proactively, you may be able to secure the continuation of a proper amount of child support that will be necessary to assist you in meeting your child’s long-term needs.