A couple from Nassau County came in to see me late last week with a serious disagreement as to the terms of their anticipated divorce. We have no fault divorce in the State of New York; since the Husband wanted out of the marriage he was going to get a divorce. They both hoped to avoid the courts and to seek a resolution through divorce mediation. The couple has a seriously autistic five year old daughter. Both agreed that Mom should retain custody. Mom took the position that their daughter would never be self-supporting and that it was the obligation of her parents to support and take care of her the rest of her life. She particularly wanted the divorce mediator to explain to the Husband that he was obliged to pay life-time child support for their disabled child. The Husband took the position that he would take care of his daughter until she was 21 — he had no problem paying the child support required by the Child Support Standards Act – but that once she was 21 her support was not his responsibility. On top of that the wife wanted to keep the marital residence forever, so that their daughter would have a place to live.
This is a heart-rending situation. Mom’s position is entirely understandable. However, so is Dad’s. The moral issues, the ethical issues, the issues of human feeling are deep. However, the question in a divorce, when the parties do not agree, is — what would a court do?
There are a number of reported cases in New York on this issue. The Family Court Act, the Social Services Law, and the Mental Hygiene Law, are each clear on this and unequivocal. Regardless of other factors, (and, obviously, absent an express agreement in writing by the parties), the responsibility of a parent to support his or her children ends once the child reaches the age of 21. Disabled adults are still adults as far as the laws of the State of New York are concerned. The history of each piece of legislation dealing with these issues is also clear: it was the intent of the legislature to limit the financial responsibility of a parent for any child who has reached the age of 21, and to put that burden on the state in the event that the adult is, in fact, still a child developmentally.
Anyone can sympathize with the plight of these parents: Mom will be taking care of her daughter forever one way or another. However, the State of New York is prepared to provide services to assist in that, or, in extremely cases, to take charge of the adult child entirely. No matter how painful facing this may be Dad’s financial responsibilities for his child end on her 21st birthday.
This is just one issue in the child custody and support area of Divorce Mediation.