Deviation From Guidelines
The starting point for determining child support in all Virginia cases is Virginia Code § 20-108.2, which sets forth 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 children with a disability or special needs may find themselves incurring additional costs not covered by the guidelines.
In those circumstances, the custodial parent may 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 a disability, this factor normally requires evidence of the additional costs incurred as a result of their special needs, 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.
Child Support Past Age 18
The general 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.
However, in cases involving children with a disability or special needs, a parent may require child support even after the child has reached the age of 18 or 19. Virginia Code § 20-124.2 provides that the court may order that support be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18, (b) unable to live independently and support himself or herself; and (c) residing in the home of the parent seeking or receiving child support. Therefore, if there is a child support order entered prior to the child turning 18 and the child suffers from a severe and permanent condition causing him/her to be physically or mentally disabled, not self-supporting, and unable to live independently, then the parent should consider seeking continuance of child support beyond the age of 18. It is important that any parent seeking continuation of support take immediate action and not wait too long after the child has turned 18 to seek continuation of support.
In cases where parents of a child with special needs separate or divorce after the child has already turned 18, the language of § 20-124.2 (“be paid or continue to be paid”) does allow the custodial parent to petition for an initial order of support. This is the result of a 2015 amendment to the language of that code section. Prior to that amendment, § 20-124.2 only allowed a court order that support “continue to be paid” in these cases. Meaning that, for a child with a disability or special needs whose parents divorced after he or she reached the age of majority, the law did not allow for an initial award of child support.
If you have a child support case involving a child with a disability or special needs, be sure to discuss the special issues that may arise in your case with an experienced family law attorney. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Leesburg, Manassas and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.