Earlier, I wrote about continuing child support for adult children who were disabled within the definition of the American with Disabilities Act. However, this support will only continue until the child reaches 21 years of age.
Depending on the unique circumstances of the situation, the court can extend the support indefinitely if the child is “severely disabled”. T.C.A. section 36-5-101 (k)(2). Neither the section of the Tennessee Code dedicated to child support nor the courts have given us an exact definition of “severely disabled”, but there is a definition within the Welfare portion of the Code.
This definition says that “severely disabled individual” means a person “with a physical or mental disability other than blindness, which … constitutes a substantial impediment to employment and is of such a nature to prevent the individual with such a disability from currently engaging in regular competitive employment”.
However, even if we know what it means to be severely disabled, there’s still more. When dealing with the law, there’s always more. In addition to showing that the child is severely disabled. The court must be shown and convinced that:
1. The child is severely disabled, AND
2. The child is living under the care and supervision of a parent, AND
3. It is in the best interests of the child to remain under such care and supervision, AND
4. The obligor (person paying child support) has the ability to continue to pay, AND
5. The child was severely disabled before reaching the age of 18.
These requirements seem to be in line with the definition of “severely disabled individual” above, as you’re essentially proving that the child will never live on his own, and needs the care of his parent. This would be consistent with someone who is so disabled that he would not be able to survive in a competitive workplace.
Another key component to remember is that the statute allows the judge to continue the child support beyond the age of 18. Therefore, there must already be a valid order requiring child support in place before the child becomes an adult. The order continuing the child support must be issued before the obligor parent gets and order terminating his obligation. The judge cannot use this section of the code to start a new child support obligation for an adult with disabilities.
Finally, the judge is not required to use the child support guidelines when determining the amount to be paid. This can be a blessing or a curse. The child support calculator can sometimes produce strange results, and it expects lower income people to pay a much larger percentage of their income in child support than higher wage-earners. Freeing the judge from that calculation gives the judge the ability to base the obligation on the actual needs of the child, but it also may require the parties to spend a lot of resources proving what those needs are.
If you are a parent of a child with special needs and you are divorced (or may be some day) you need to keep this in mind. Your expenses for your child may not stop when the child becomes 18, and the absent parent should continue to contribute.