How Child Support Complicates Benefits for Adult Developmentally Disabled Children
8.21.2023
Receiving and distributing child support for developmentally disabled children is complicated. And it gets more complicated as a child ages into adulthood, changing their eligibility for benefits.
The New York State Bar Association’s Family Law, Elder Law & Special Needs and Trusts & Estates Law sections hosted a continuing legal education course to discuss this topic. Lawyaw and the New York Community Trust sponsored the program.
The speakers included:
- Thomas Gordon, support magistrate at Rensselaer County Family Court.
- Ellyn Kravitz, partner at Abrams Fensterman.
- Tara Anne Pleat, founding partner at Wilcenski & Pleat and past chair of the Elder Law & Special Needs Section.
Navigating state and federal benefits is difficult, and parents are often left to figure it out on their own. “It’s like a second job they have when they’re trying to manage this system and get it to work for the benefit of their child,” said Pleat.
“I’m a parent as well as an attorney, so part of my demeanor in talking about it comes from personal frustration,” continued Pleat. “As well as the frustration that I share with my clients in trying to help them as far as navigating that system.”
Receiving Child Support Through the Courts
To receive child support, a petition to Family Court must prove that a child is developmentally disabled – as defined by New York’s Mental Hygiene Law – which usually includes a diagnosis and a written report from a medical professional. “Even a temporary order of support is not likely to be made without the court receiving that report,” said Gordon. “And the other side has an absolute right to demand that report. If the report doesn’t exist, the petition is likely to be dismissed.”
Gordon explained that the medical professional who made the report can be subject to cross-examination, as parents may disagree on a child’s needs and expenses. “The court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the support obligation,” he said.
Balancing Benefits and Child Support
Developmentally disabled individuals may also receive Supplemental Security Income (SSI), which is for impoverished people over the age of 65 and disabled people under the age of 65. Most developmentally disabled children only become eligible once they turn 18 or are no longer going to school.
SSI is a federal program meant to help to pay for basic necessities of food and shelter, but there are limits.
The program is means-based, which means that recipients and their families receive less money if they have more financial resources. Cash on hand, savings and outside income count against SSI, resulting in a dollar-for-dollar reduction of benefits. (Housing, one vehicle and some life insurance policies are exempt.) The resource limit is $2,000 for single individuals and $3,000 for married couples.
Child support also counts as income from an outside source. While a custodial parent may be the one receiving child support, that changes once the child turns 18. “Once that child turns 18, and they are developmentally disabled, that child support payment is going to be allocated income to them,” said Kravitz. “Which will adversely affect their eligibility for SSI.”
Kravitz and Pleat said it is possible to get around these restrictions by paying child support directly to a trust – such as a first party supplemental needs trust. This way, the money is not considered income.
“You can get the best of both worlds,” said Pleat. “You can get the income paid into an entity that isn’t going to count against or undermine the benefits that the child is receiving – and get them some additional funds to help support their needs and expenses and the home of the custodial parent.”
However, a custodial parent must report how much money comes into those trusts, and how those funds are used. “If the trust is being used for to pay for food or shelter, there will be an SSI reduction,” said Kravitz.
SSI as the Doorway to Medicaid
SSI also gives families and children direct access to the New York State Medicaid program, which provides health insurance. “I refer to it as the doorway,” said Pleat. “It’s not the only doorway. It’s one of the doorways. If you are eligible for SSI in New York, you are automatically enrolled in the state Medicaid program, which means you do not have to go through a separate eligibility and recertification process.”
Medicaid also has resource limits. These increased significantly in 2023 from $16,800 to $30,182 for an individual and $24,600 to $40,821 for a couple. “Normally we don’t see increases in income and resources on an annual basis as great as these are,” said Kravitz.
Pleat said that as of 2023, a child can receive up to $1,600 in child support payments without it adversely affecting Medicaid eligibility. “But they will not receive SSI,” she said. “These are the conversations and issues that we need to be aware of counseling our clients about when they’re looking at the long-term impact of divorce, child support payment and needs on an ongoing basis.”
The CLE is available on demand.
