Is Child Support Available for Children with Disabilities Past the Age of 23?

At Hammerman Rosen LLP, we often speak to divorced parents of young adult children with disabilities or special needs.  Those parents need to know how the revised child support law, updated in February 2017, impacts how “child support” awards are calculated once their young adult child with disabilities or special needs reaches the age of 23. 

As most would assume, under the law, a child with disabilities should not be emancipated “if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent.” N.J.S.A. 2A:34–23. However, once a child turns 23 years old, there is a bright line rule requiring that “child support“ end. 

The relevant section for divorced parents of young adult children with disabilities or special needs is contained at N.J.S.A. 2A:17-56.67(a), which states, in pertinent part:

a child support obligation shall terminate by operation of law without order by the court when a child reaches 19 years of age unless (1) another age for the termination of the obligation to pay child support, which shall not extend beyond the date the child reaches 23 years of age, is specified in a court order; (emphasis added).

Thus, on its face, the law terminates “child support” at 23 years of age for all children, regardless of circumstance.   However, the reader should not conclude that support of the young adult child with disabilities or special needs will definitely end upon that child’s 23rd birthday.  The question is one of semantics.

While “child support” for all children in New Jersey will terminate upon 23 years of age, non-custodial parents of young adult children with disabilities or special needs can still be ordered to pay “maintenance” for those children.  “Child support” and “maintenance [for a young adult child with disabilities and special needs]” are different only in that “maintenance” is not enforceable through Probation and is not called “child support.”  Such Court Orders are still enforceable through the Family Court enforcement mechanism of filing, beginning with filing a motion to enforce litigant’s rights.

Therefore, non-custodial parents of young adult children with disabilities and special needs turning 23 should not assume that they will no longer pay money directly for their child’s maintenance, whether called “child support” or “maintenance.”   However, the burden is squarely on the custodial parent of the young adult child with disabilities or special needs to file a Notice of Motion in the Family Court of appropriate jurisdiction. 

This conclusion was supported in the recent decision Scarpa v. Scarpa, 2017 WL 1179843, at Footnote 2 (App. Div. 2017) which states that:

[t]he statute is applicable even when the child has a mental or physical disability. N.J.S.A. 2A:17–56.67(e)(2). However, if a parent needs to obtain financial assistance for a disabled adult child, the new statute allows the court to order ‘another form of financial maintenance for a child who has reached the age of 23.’

In all, the new law favors non-custodial parents of young adult children with disabilities or special needs as they will no longer need to fear the strong enforcement mechanisms previously provided by the Probation department once their child turns 23 years old.  Additionally, an adult child who suffers from a disability but is self-sufficient will ordinarily be considered to be emancipated. See Kruvant v. Kruvant, 100 N.J. Super. 107, 119 (App. Div. 1968).

Thus, if you are a divorced parent and your child has a disability or special need, or if you received a notice that “child support” will be terminating for your child, you should strongly consider hiring an experienced family law attorney to represent you.  We are eager to assist you in any complicated Family Court matter. 

The author, Matthew J. Rosen, Esq., is a family law attorney, family law mediator, and partner with Hammerman Rosen LLP.  

Family Law Case Study: Sometimes We Need a Consent Order

The practice of family law is deeply rewarding.  I get to impact the lives of families in crisis and sometimes make positive changes in children’s lives.  Below is a story of how good lawyering and preparedness allowed me to reach an agreement with my adversary.  It’s an example of how, by coming to an agreement, I was able to get my client more than he probably would have gotten in court:

Knowing when to agree is one of the essential skills of good lawyering.   Many think that because family law issues are so personal, their issue cannot be solved except in Court.  However, there are circumstances, such as in a child relocation out-of-state against a non-custodial parent’s wishes, where even the Court will probably not act absent agreement between the parties. 

In the late evening in October, a new client called us wanting help relocating his two children to a non-New-Jersey-bordering state.  He had this great opportunity to work out of state, but he would not go without his children. The mother of his children, the non-custodial parent, would oppose any relocation.   

I told the client that relocating children against a parent's wishes would be a difficult sell to any New Jersey judge.  However, having negotiated a price, I agreed to make an appearance on the motion he had already filed.

Knowing the law, I visited my new client and performed a through fact investigation.  I =remained skeptical of my client's ultimate ability to relocate because the law, N.J.S.A. § 9:2-2, plainly states that relocation is not allowed without a trial or the consent of both parents.  After reading the case law, I still believed my client would need a Consent Order to relocate with his child, because in New Jersey, there are twelve factors that play into a court's relocation decision, and my client only could meet a few.   

Somehow, I needed the child’s mother to agree to the relocation.  I needed to prepare a Consent Order and go to the hearing.  Checking in at the appearance, I approached my adversary with a fair Consent Order, and politely asked her to read it.   I then spoke with the court's case management team and mentioned that I prepared what I believed to be a fair settlement.   Interested, the clerk disappeared with the document, and I spent some time speaking to my client.

After several minutes passage and from nowhere, a court mediator appeared and wanted to speak to both parties, ushering us into a settlement conference room.  The mediator wanted to know, off the record of course, if it would be possible that a Consent Order could be signed based on the agreement I had proposed.  The Court saw my agreement was fair, and wanted us off its docket. 

A few tense minutes passed, we are able to break the ice, and I am able to earn the mother’s trust.  She has seen that I wrote a fair Consent Order to start off with, and she can tell I am being fair with her.   

Unbelievably, the mother eventually agreed to sign.  In a whirlwind of events, the judge finalized the Order, after what is called voire dire, and a child has been relocated starting immediately.  As a result, my client's life is changed forever. 

This result would not have been possible without preparedness, knowledge of the law, and skilled negotiation.  By the end of this interaction, I had leveraged the law to effectively represent my client, but I had also earned my adversary's trust, which trust made settlement a possibility.  Ultimately, being a lawyer should be a results driven business.  I didn't try this case.  I didn't drive up attorney's fees.  But I did solved my client's issue.  Sometimes agreement is the only way.

Matthew J. Rosen, Esq., - Attorney and Mediator at Hammerman Rosen LLP