Divorce and Special Needs Children

Divorce and Special Needs Children

Considering how to care for children in a post-divorce setting is often a stressful and difficult task. If a child has special needs, many less-typical factors must be considered. Whether the child has a disability, diagnosed disorder, or another medical or social issue, a parenting plan and custody arrangement must be in the child’s best interests, and must be crafted in such a way that their needs continue to be met.

A parenting plan is required in all cases where children are involved. The parenting plan outlines each parent’s time sharing arrangements with the children, as well as other important items such as travel restrictions, child care instructions, and school designation. If a child has special needs, additional information and instructions for caring for that child should be outlined, in detail, in the parenting plan. For example, perhaps overnights with one parent may not be acceptable, or the child will need to be removed from school early to attend doctor’s appointments or counseling. If one parent has generally been the caregiver of the child with special needs throughout the marriage, it may be in that child’s best interests for that caregiving parent to have sole decision-making authority over that child’s medical needs. Regardless of the special needs of the child, if any specific instructions are required for that child’s care it should be outlined in the parenting plan.

Child support may be modified when a special needs child is involved. While child support is most often calculated pursuant to the Florida Child Support Guidelines, the number determined may not be sufficient depending on the care required and the severity of the child’s disability or disorder. For example, medical costs, therapists, doctors, medications, caregiver costs, or special education are some of the additional costs to consider for a child with special needs. A predetermined child support amount may not cover the needs of the child, especially if the child’s needs may increase as they grow older. In Florida, child support terminates at the age of majority or at a child’s graduation from high school. Often, however, a special needs child requires support past the age of majority, and specific language and guidance is needed in an agreement to ensure that the child receives support past the age of majority.

Your children are so important. If you are going through a divorce or paternity matter and your child has special needs, it is imperative that the future needs of the child are considered, as well as any needs of the caregiving parent. Kirkner Family Law Group is here to help you create the best possible plan for the future of you and your children. Contact us today or call (813) 254-0156 to discuss your needs.

Post Decree Modification of Child Support

Post Decree Modification of Child Support

Generally, child support is a noncustodial parent’s obligation to support a child until he reaches age 18, graduates from high school, or is otherwise emancipated. A child can be emancipated through a statutory process by entering the military service or by getting married. If a child is disabled or suffers from a debilitating disease, the support obligation can continue beyond those events. If a child attends college, there may be no statutory basis for child support but there may remain an obligation to provide post-high school tuition, costs, fees, and room and board.

When a child support award is entered, it is usually based on a statutory calculation that considers the number of children to be supported by the obligor, who is the person responsible for paying the support; the assets of the obligor; and the amount of income received by the obligor from all sources. Those factors are the background that existed at the time the support award was entered. Often, as the years pass, the needs of the children change; or perhaps the obligor’s ability to pay changes. All support obligations are modifiable in the future to take into consideration those changes. Either parent may petition the court for modification.

Generally, the petitioning parent may be entitled to a modification in child support when the parent can show evidence of a drastic change in the parties’ income and earning abilities, the assets available for support, employee benefits due each party, the costs of rearing the children, the health conditions of the parent or the child, and a change in custody. Some states will also accept as change evidence that a party has a new spouse with additional income or evidence that new family responsibilities have arisen. Generally, courts will not consider evidence of change that was created by the obligor, who seeks to reduce his child support obligation, as those courts believe that the obligor was aware of his responsibility to provide support and should not have undertaken new obligations that impaired that responsibility.

Written Order

Most states require a judge to approve an order that changes a party’s obligation to pay child support because a judge has a duty to act in the best interests of the child and to insure that the parties do likewise. All states recognize that a modification in child support must be reduced to writing in order to be valid and effective. No matter how well parties get along, no party is justified in relying on the other party’s oral acceptance of the oral modification. A court is not bound by the parties’ informal modification agreements and can hold a party in contempt of court if he or she fails to comply with the court order that is on file. Unless a modification agreement is reduced to writing and made a part of a court’s file, the modification may not be valid or enforceable.

Retroactive Child Support Awards

Retroactive Child Support Awards

In most states, initial child support awards may be made retroactive to the date of filing and modifications may be retroaction to the date a modification is requested. In some states, retroactivity is mandatory, and in others, it is discretionary.

Initial Awards

Most of the time, the first child support award is made retroactive from the date of filing. In some states, a child support award may be retroactive to a period prior to the petition for support. If the mother received welfare benefits, child support may be awarded retroactive to the date benefits were first paid. Any payments made between the effective date of the child support order and the date the court makes a determination of support will be credited against any retroactive amount found to be due. In California, an order for child support may be made retroactive to the date of filing, but if the parent ordered to pay support was not served within 90 days and he did not evade service, the order may not be effective before the date he was served. In Florida, an order of support may be retroactive to the date the parties separated, but no more than 24 months prior to the filing of the petition. In Indiana, an award may be retroactive to the date of the child’s birth.

It is often the case that the first child support award is a temporary award, made before the parties have been able to fully discover all of the income of the parents and expenses of the child. In such cases, when child support is finally determined, there is a reluctance to alter the amount owed while the temporary order was in effect, particularly where the parent who pays child support has met his or her obligation. However, where there is a significant difference in the amount of support or if a parent had intentionally hidden or reduced his or her income, a tribunal may award a retroactive increase.

Modification

When a court modifies an award of child support, it may make the award retroactive to the date that a modification was requested, but it cannot go beyond that date. It is within the discretion of the tribunal as to whether to make the award fully or partially retroactive to the date of filing. In some states, a person seeking modification must present evidence demonstrating why the order should be retroactive to the date of the date of filing. In other states, retroactivity is presumed, unless the court is decreasing the amount of support.

 

Preference of Child in Custody Determinations

Preference of Child in Custody Determinations

In awarding or modifying custody, one of the factors considered by a court is the preference of a child, However, the extent to which the court will consider an expressed wish and how much weight the court will give that wish depends on the age and maturity of the child and the circumstances under which the choice was made.

When Preferences Are Given Little Weight

As a rule, children love both of their parents and one of the most difficult decisions for the child to make is whether to live with one parent rather than the other. Children want both parents to live together, and they want to live with both of them. No court wants to place a child in the position of choosing, and courts often ignore or give very little weight to an expressed preference, particularly when the child is very young. Some courts will not permit the child to testify as to a preference. One reason is that the court may be concerned that the child has been coached. Where the child is living with one parent prior to a court hearing, not only the parent, but the parent’s relatives all too often seek to sway the child. It is for the court to determine what is in the child’s best interests in deciding custody regardless of the stated preference of the child.

When Preferences Are Considered

As a child grows older and begins to form independent decisions, the court will listen to the child to find out which parent, if either, the child would prefer to live with and the reasons the child gives for that desire. A child might want to live with a parent because that parent has been the primary caretaker during the course of the marriage. A daughter may want to live with a father because the mother and daughter are constantly battling and the daughter feels closer to the father. On the other hand, a child might want to live in the house that is bigger, has more expensive toys, and the parent is wealthier, but if that parent works excessive hours and is not available for the child, the court could deny the request. A child may want to change schools because of the difficulty of the school program or because of the type of students. Before a court grants the request, the court is required to determine what is best for the child.

Where a child has reached the age where the child may petition the court for a change in custody, courts often grant the child’s wishes. However, the request will be denied if the person the child chooses to live with is abusive or violent, or where there is clear evidence that the choice is not in the best interests of the child.