Divorce is an unfortunate reality for many couples and can be especially complicated and heartbreaking when children are involved.  Parents of children with special needs, however, face additional challenges.  While custody and child support issues are typically addressed in divorce proceedings, parents of children with special needs and their divorce attorneys must also consider, among other things: (1) who will be the guardian or guardians after the child’s 18th birthday; (2) the effect of the newly enacted child support termination law; and (3) whether to establish a trust for child support and/or maintenance payments to ensure such payments do not disqualify special needs children from receiving government benefits.

A Guardianship is Necessary for Children With Special Needs 18 or Older

Parenting time and custody over minors are issues adjudicated in a divorce proceeding in the Family Division of the Superior Court.  Family courts in New Jersey, however, will generally not award “custody” over anyone 18 or older because upon the child’s 18th birthday, he/she is legally deemed an adult with the right to make his/her own medical, legal, educational, financial, vocational, and residential decisions.

Additionally, without permission from the adult child, no one is authorized to access that child’s medical, legal, financial, or educational records. Often times, cognitive limitations prevent adult children from not only making competent decisions, but also from providing the authorization necessary to ensure their parents have access to essential records.  Given that the Family Court will not award “custody” over an adult child, parents of children with special needs in the process of obtaining a divorce must consider what type of proceeding should be filed to ensure there is authorization to make decisions for their adult disabled children and which parent, if not both, will be authorized to make those decisions.

In order to obtain authorization to make decisions for a special needs child that is 18 or older, a petition for guardianship must be filed with the Chancery Division of the Superior Court.  If a divorce is commenced and the couple’s special needs child will turn 18 shortly thereafter, or the child is already over 18, the Family Court judge in the divorce proceeding will likely direct the parents to file a guardianship petition prior to determining issues of child support or maintenance payments.  In that guardianship action, the parent (or parents) applying for guardianship must demonstrate that their child is incapacitated based on that child’s inability to govern himself and manage his affairs. This is done by filing, among other documents, a Verified Complaint, a certification of assets and certifications from two physicians or a physician and a licensed practicing psychologist supporting the petition for guardianship. If the child is receiving services from the New Jersey Department of Children and Families – Children’s System of Care/PerformCare or the Division of Developmental Disabilities, the documents to be submitted in the guardianship action will vary slightly.

Once appointed, a guardian (or guardians) will have the authority to make, medical, legal, educational, financial, vocational, and residential decisions for that adult child. The guardian (or guardians) will also be considered the child’s personal representative under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and will have full and complete access to all of the adult child’s records.

Divorce and guardianship proceedings can be tumultuous for the children involved. As such, the ultimate goal should be to create an environment during and after the litigation where parents can work together to continue to act in their child’s best interests and maintain a civil, if not amicable relationship.  This is especially important when children with special needs are involved because it is likely that the parents will remain in contact for the remainder of the children’s lives.  A potential way to avoid future disagreements is to address areas where decisions will have to be made for the special needs child during the guardianship. Some of these areas include: residence, schooling, vocation, medical care/treatment, enrollment in a “21 Plus” program, enrollment in extra-curricular activities, travel out of state, activities of daily living, a protocol for transfer of the child for parenting time from one parent to another, and a protocol for emergency situations.  In an effort to avoid returning to Court each time there is a disagreement, guardians should also consider determining what mechanism to employ should they come to an impasse regarding their child.  One option, for example, could be to engage a neutral decision maker.  If practicable, these decisions and protocols should be memorialized in a final judgment appointing the guardian or guardians. Additionally, if only one parent is awarded guardianship, the non-guardian parent can still petition the Court for certain rights to be included in the final judgment appointing the guardian.

Extending Child Support and Financial Maintenance Payments

Once the guardianship proceeding is completed and a guardian or guardians are appointed, the parents will return to the Family Division to resolve issues regarding child support and/or financial maintenance payments.  A child’s special needs may affect whether child support can be extended and eventually converted to financial maintenance.  Pursuant to the Child Support Termination Law which went into effect on February 1, 2017, child support automatically terminates when a child:

  • marries;
  • dies;
  • enters the military; or
  • reaches the age of 19, unless an exception applies.

Child support may continue past the age of 19 if:

  • a Court Order directs support to terminate at a different age or date;
  • the child is still enrolled in high school or other secondary educational program;
  • the child is enrolled full-time in college or other post-secondary education program;
  • the child is in the custody of the Division of Child Protection and Permanency in the Department of Children and Families; or
  • the child has a physical or mental disability, as determined by a federal or State government agency, that existed prior to the child reaching the age of 19 and requires continued child support.

Even if an exception applies, however, including that the child’s disability requires continued support, child support will automatically terminate once the child turns 23.  When a child reaches age 23, that child or his parent can apply to convert the child support to another form of “financial maintenance,” but only if exceptional circumstances such as a mental or physical disability are demonstrated.

Establishing a Special Needs Trust for Child Support or Financial Maintenance Payments

Parents of children with special needs must also consider the effect of child support and/or maintenance payments on a child’s potential to qualify for and receive government benefits.  Children and adults with special needs may be entitled to government benefits such as Medicaid and Supplemental Security Income (“SSI”).  These means-based benefits may be compromised if a child receives support or maintenance payments from his or her parents because in New Jersey, child support payments are considered an asset of the child.  As such, parents of children with special needs and their family law attorneys should consider having child support or financial maintenance paid into a properly established special needs trust to ensure that those children remain qualified for government benefits after turning 18.  Without a special needs trust, those with special needs could be disqualified from means-based benefits.  Such a trust should be established either during the divorce proceeding or during the guardianship proceeding, and a Court Order must direct the child support funds be deposited directly into that trust.

Given the complexities of this area of the law, it is strongly advised that parents and their family law attorneys seek assistance from competent counsel experienced in guardianship litigation and special needs planning.