New York Law that Impacts Children with Special Needs

Definitions

 N.Y. Mental Hyg. Law §1.03 (20). Defines “mental illness” as “an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation.”

 N.Y. Mental Hyg. Law §1.03 (22). States that “developmental disability” means “a disability of a person which: (a) (1) is attributable to mental retardation, cerebral palsy, epilepsy, neurological impairment, familial dysautonomia or autism; (2) is attributable to any other condition of a person found to be closely related to mental retardation because such condition results in similar impairment of general intellectual functioning or adaptive behavior to that of mentally retarded persons or requires treatment and services similar to those required for such person; (3) is attributable to dyslexia resulting from a disability described in subparagraph (1) or (2) of this paragraph; (b) originates before such person attains age twenty-two; (c) has continued or can be expected to continue indefinitely; and (d) constitutes a substantial handicap to such person’s ability to function normally in society.

Child Support

 N.Y. Dom. Rel. Law §240(1-b)(f). Child Support. Pursuant to this statute, the basic child support obligation can be adjusted based upon consideration of enumerated factors, which include “[t]he physical and emotional health of the child and his or her special needs and aptitudes”.

 Blenk v. Blenk, 6 A.D.3d 283 (N.Y. App. Div. 1 st Dep’t 2004). The appellate court affirmed the trial court’s ruling directing the defendant husband and the plaintiff wife to respectively pay 75% and 25% of their child’s basic expenses, therapeutic/educational expenses, and other uncovered health care expenses. Before addressing the issue of spousal maintenance, however, the court ordered the appointment of an educational evaluator to assess the child’s ability to attend a “full-time school-based program” (at the time, the child was being home-schooled under care of the mother), calling into question the assertion that the child would soon be enrolled in school based on the trial record. The court advised that it would come back to the issue of whether to award durational or permanent spousal maintenance after a determination was made on whether the child could attend school. Specifically, the court noted that “[a]lthough plaintiff formerly had her own ophthalmology practice, a career which she may be able to establish, the reality of her situation may be that she will instead be required to care for the child for the rest of her life.” Support for Disabled Adult-Child (Post Minority Age Support)

 N.Y. Fam. Ct. Law § 415 (Consol.). Duties to support recipient of public assistance or welfare and patients in institutions in the department of mental hygiene. Except as otherwise provided by law, the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof or of a patient in an institution in the department of mental hygiene, if of sufficient ability, is responsible for the support of such person or patient, provided that a parent shall be responsible only for the support of his child or children who have not attained the age of twenty-one years. In its discretion, the court may require any such person to contribute a fair and reasonable sum for the support of such relative and may apportion the costs of such support among such persons as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means. Step-parents shall in like manner be responsible for the support of children under the age of twenty-one years.

 N.Y. Fam. Ct. Law § 413 (Consol.). Parents’ duty to support child. 1. (a) Except as provided in subdivision two of this section, the parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine. The court shall make its award for child support pursuant to the provisions of this subdivision. The court may vary from the amount of the basic child support obligation determined pursuant to paragraph (c) of this subdivision only in accordance with paragraph (f) of this subdivision.

 N.Y. Fam. Ct. Law § 101.1 (Consol.) Liability of relatives to support. 1. Except as otherwise provided by law, the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof shall, if of sufficient ability, be responsible for the support of such person, provided that a parent shall be responsible only for the support of a child under the age of twenty-one years. Step- parents shall in like manner be responsible for the support of step-children under the age of twenty-one years. Nothing herein shall impose any liability upon a person to support the adopted child of his or her spouse if such child was adopted after the adopting spouse is living separate and apart from the non-adopting spouse pursuant to a legally recognizable separation agreement or decree under the domestic relations law. Such liability shall not be imposed for so long as the spouses remain separate and apart after the adoption.

 Beiter v. Beiter , 539 N.Y.S.2d 271 (N.Y. App. Div. 1989). Defendant ex-wife, in the ex-husband's divorce action, filed an application extending plaintiff ex-husband's obligation to pay child support for their daughter who had attained the age of 21 but was physically and mentally handicapped. The ex-husband argued that his obligation to support the child ceased when she turned 21, regardless of handicap, and that accordingly the marital premises was to be sold and equitably distributed. The ex-husband filed a divorce action against the ex-wife. The ex-wife filed an application to extend the ex-husband's support obligation of the parties' handicapped child, despite the fact that the child had attained the age of 21. The ex-husband argued that his obligation to support the child ceased when she turned 21, and therefore the marital premises was to be sold and equitably distributed. The court denied the application to extend the ex-husband's child support obligation, holding under N.Y. Soc. Serv. Law § 101 and N.Y. Fam. Ct. Act Law §§ 413 and 415 a parent did not have a legal responsibility to financially support a child that had reached the age of 21, regardless of any mental or physical disability. Absent an agreement to the contrary, there was no statutory authority to compel a parent to provide financial support to a physically or mentally disabled child over the age of 21 years. Under N.Y. Fam. Ct. Act Law § 415, a parent was only responsible for supporting a child under the age of 21.

The court denied the ex-wife's application for an order extending the ex-husband's obligation to pay child support for his disabled child, having attained the age of 21.

 In re Account of Proceedings of Vict. Ramirez , 238 N.Y.L.J. 90, 5 n.2 (N.Y. Surr. Ct. 2007). As explained in Genther v. Genther (180 AD2d 662, 663 [2d Dept 1992]): "Under New York law, a parent is chargeable only for the support of [her] children under the age of 21 years (see Domestic Relations Law § 32[3]; Family Ct Act § 413) even if a child is disabled (see Beiter v. Beiter, 142 Misc 2d 954). Moreover, while a parent may by agreement obligate himself or herself to pay child support for a child over the age of 21 years (see Hirsch v. Hirsch, 142 AD2d 138) only 'an express agreement in unmistakable terms' will cause such liability to attach (Gray v. Pashkow, 173 AD2d 1100, 1101; Hoffman v. Hoffman, 122 AD2d 583, 584)." Here, there has been no express agreement by the guardian to provide for Domingo's support and she was unable to maintain her employment as a fast food restaurant because her "daughter who used to watch Domingo during [her] work hours, moved away."

Maintenance and Property Division

 N.Y. Dom. Rel. Law §236(B)(5-a)(c)(2) and §236(B)(5-a)(e)(1) . Temporary Maintenance. Pursuant to these statutes, the presumptive award of temporary maintenance can be adjusted based upon consideration of enumerated factors, which factors include:

“[t]he care of the children or stepchildren, [or] disabled adult children or stepchildren . . . that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment”;

“[t]he need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment”.

 N.Y. Dom. Rel. Law §236(B)(6)(a). Post-Divorce Maintenance. Pursuant to this statute, in determining the amount and duration of post-divorce maintenance, the court shall consider enumerated factors, which factors include:

“[t]he care of the children or stepchildren, [or] disabled adult children or stepchildren . . . that has inhibited or continues to inhibit a party’s earning capacity”; and

“[t]he need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care, and medical treatment”.

 N.Y. Dom. Rel. Law §236(B)(5)(c) and (d). Equitable Distribution. Pursuant to this statute, “[m]arital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.” In “determining an equitable disposition of property”, the court shall consider enumerated factors, which factors include:

“the income and property of each party at the time of marriage, and at the time of the commencement of the action”;

“the need of a custodial parent to occupy or own the marital residence and to use or own its household effects”;

“any award of maintenance under subdivision six of this part”;

“any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party”; and

“the probable future financial circumstances of each party”.

 Evans v. Evans , 55 A.D.3d 1079 (N.Y. App. Div. 3d Dep’t 2008). In determining post-divorce spousal maintenance in a case where one of the parties’ two children had special needs, the appellate court took into account the following factors: that a permanent disparity existed in the respective earning potential of the plaintiff mother, a self-employed hairstylist, and the defendant father, who had an electrical engineering degree; that the parties were married for 19 years; their ages and the state of their health; their incomes and disparity in their earning capacities; the duration and amount of temporary maintenance paid to the plaintiff during the pendency of the proceeding; the equitable distribution of their assets and debts; the plaintiff’s ability to become self-supporting; and the status of the children, particularly the daughter’s “special needs” (the nature of which the court did not discuss). Based on those factors, the Court found that the defendant husband should pay maintenance to plaintiff of $1,000 per month until the plaintiff wife became eligible to receive Social Security benefits.

 Klein v. Klein , 296 A.D.2d 533 (N.Y. App. Div. 2d Dep’t 2002). The appellate court found that because each of the parties’ three children had “documented learning disabilities and emotional disturbances”, as well as “the evidence that the plaintiff takes an active role in their schooling, homework, and after-school activities”, the spousal maintenance award should be extended from five to fifteen years so that the children could reach 18 years of age and to “provide the plaintiff time to acquire appropriate job skills.”

 Alvares-Correa v. Alvares-Correa , 285 A.D.2d 123 (N.Y. App. Div. 1 st Dep’t 2001). The defendant husband appealed the trial court order which, among other things, awarded the plaintiff lifetime maintenance. Throughout the parties’ marriage, the plaintiff mother was a homemaker and primary caretaker for the parties’ children, both of whom have special needs. The Court found that because of this, the plaintiff “has delayed employment opportunities.” Thus, “in determining child support and maintenance, the court took into account plaintiff’s limited employment history, the special needs of the children, the parties’ pre-separation standard of living and the fact that the mother will continue to be the children’s primary caretaker.” The Court also noted that in this case, there was no equitable distribution and the plaintiff was not leaving the marriage with any marital property, so “an award of lifetime maintenance depends upon analysis of the payee spouse’s reasonable needs and pre-divorce standard of living.” In this case, the plaintiff would be “required to rely for her support entirely upon her own assets and whatever earning potential she might possess as a woman in her 40s who is returning to the job market after a long hiatus.” Thus, the trial court correctly determined that “an award of lifetime maintenance was necessary because plaintiff would not otherwise be able to achieve a lifestyle that was at all comparable to the one that she had during the marriage.”

 Finkelson v. Finkelson , 239 A.D.2d 174 (N.Y. App. Div. 1 st Dep’t 1997). The appellate court found that the trial court had exercised its discretion properly in dividing the marital property equally between the parties. Specifically, the court looked to the difference in the parties’ financial circumstances, given that the wife had not worked for a long period of time and was caring for their child with special needs. It was thus appropriate to award the wife the more liquid of the marital assets. The court held that the maintenance and child support awards were similarly proper, given, among other things, that the wife was caring for the special needs child and was unable to be financially independent.

 Milewski v. Milewski , 197 A.D.2d 562 (N.Y. App. Div. 2d Dep’t 1993). In this case, the appellate court affirmed the trial court’s decision to award permanent spousal maintenance to the plaintiff wife because “the reality of the plaintiff’s situation is that she will be required to care for the child for the rest of her life.” This decision did not elaborate upon the nature of the child’s disability.

Custody, Visitation, and Relocation

 Kaplan v. Kaplan , 21 A.D.3d 993 (N.Y. App. Div. 2d Dep’t 2005). The father appealed from a lower court decision which, inter alia, awarded the mother custody of the parties’ child (who had special needs), permitted her to relocate, and awarded her child support of $3925/month and maintenance of $7500/month for 5 years. The appellate court lowered the father’s child support obligation to $2836/month, but upon termination of the father’s maintenance obligation, his child support obligation was to be upwardly modified to $4112/month, and directed that the parties shall jointly consult with one another with respect to the child’s education and health, including as to decisions pertaining to his special needs resulting from his hearing disability, and directed that in their consultation, the parties were to use their best efforts and good faith to arrive at a joint decision in the best interests of their child, but that the mother had final decision-making authority.

The appellate court found that the trial court had properly awarded custody to the mother, as while each parent was capable of caring for the child, the mother was “available to care for the child and address his special needs” and “the mother was the primary caretaker since the child’s birth”. With respect to child support, the appellate court found that the trial court properly applied the statutory child support percentage to the combined parental income over $80,000 (the prior income cap), because, among other factors, the “mother was not working at the pertinent time, and was attending to child care, including the child’s special needs” while the father was working and earning over $400K/year. As for maintenance, the appellate court upheld the award ordered by the trial court, finding that the trial court properly considered the relevant factors, including “the mother’s absence from the work force as a certified social worker for most of the period following the birth of the parties’ special needs child”, “the mother’s continued role as the primary caretaker of a special needs child” and “the father’s significantly higher earning capacity as a successful partner in a radiology practice”.

Special Needs Trust

 N.Y. Est. Powers & Trusts Law §7-1.12 (Consol.). Supplemental Needs Trusts Established For Persons With Severe And Chronic Or Persistent Disabilities. This statute sets forth the parameters for establishment of a “Supplemental Needs Trust”, which is defined as “a discretionary trust established for the benefit of a person with a severe and chronic or persistent disability (the “beneficiary”) which conforms to all of” the criteria set forth the statute. Such criteria includes (1) that the trust document evidence “the creator’s intent to supplement, not supplant, impair or diminish, government benefits or assistance for which the beneficiary may otherwise be eligible or which the beneficiary may be receiving . . . .”; (2) that the trust document prohibit the trustee from “distributing trust assets in any way which may supplant, impair or diminish government benefits or assistance for which the beneficiary may otherwise be eligible or which the beneficiary may be receiving” (however, the trustee may be authorized to make distributions to meet the beneficiary’s needs for food, clothing or health care if it is in the beneficiary’s best interests to do so); and (3) that the “beneficiary does not have the power to assign, encumber, direct, distribute or authorize distributions from the trust”. The statute also provides that it “shall be presumed that the creator of the trust intended that neither principal nor income be used to pay for any expense which would otherwise be paid by government benefits or assistance for which the beneficiary might otherwise be eligible or which the beneficiary might be receiving”, notwithstanding the trustee’s authority to make distributions for food, clothing, shelter or health care in accordance with the best interests of the beneficiary.

The statute provides that “[p]erson with a severe and chronic or persistent disability” means a person: “(i) with mental illness, developmental disability, or other physical or mental impairment; (ii) whose disability is expected to, or does, give rise to a long-term need for specialized health, mental health, developmental disabilities, social or other related services; and (iii) who may need to rely on government benefits or assistance.” The statute defines both “developmental disability” and “mental illness” as those terms are defined in Mental Hygiene Law §1.03.

Adoption Subsidy

 N.Y. Soc. Serv. Law § 453.1(a) (Consol.). Maintenance subsidy; handicapped or hard to place child. 1. (a) A social services official shall make monthly payments for the care and maintenance of a handicapped or hard to place child whom a social services official has placed for adoption or who has been adopted and for the care and maintenance of a handicapped or hard to place child placed for adoption by a voluntary authorized agency who is residing in such social services district. Where a handicapped or hard to place child is placed in an adoptive placement outside the state, monthly payments for the care and maintenance of the child shall be made by the social services official placing the child or in whose district the voluntary authorized agency maintains its principal office. Such payments shall be made until the child’s twenty-first birthday to persons with whom the child has been placed, or to persons who have adopted the child and who applied for such payments prior to the adoption, pursuant to a written agreement therefor between such official or agency and such persons; provided, however, that an application may be made subsequent to the adoption if the adoptive parents first become aware of the child’s physical or emotional condition or disability subsequent to the adoption and a physician certifies that the condition or disability existed prior to the child’s adoption. The social services official shall consider the financial status of such persons only for the purpose of determining the amount of the payments to be made, pursuant to subdivision three of this section. Upon the death of persons who have adopted the child prior to the twenty-first birthday of the child, such payments shall continue to the legal guardian or custodian of the child under the age of eighteen upon issuance of letters of guardianship or order of custody and shall continue until the child shall attain the age of twenty-one. If the guardian or custodian was the caretaker of the child under the age of eighteen prior to the issuance of letters of guardianship or order of custody, such payments shall be made retroactively from the death of the adoptive parent or parents.

Other Laws

 N.Y. Educ. Law §§4401 – 4410-B. Sets forth statutes pertaining to “children with handicapping conditions”. Some of the relevant statutes in this article outlined below:

 N.Y. Educ. Law §4401. A “child with a disability” as “a person under the age of 21 who is entitled to attend public schools . . . and who, because of mental, physical or emotional reasons can only receive appropriate educational opportunities from a program of special education.” “Special education” means “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability.” A “child with a handicapping condition” means a child with a disability.

 N.Y. Educ. Law §4402. Duties of School Districts. This statute provides that the board of education or trustees of each school district shall identify, locate and evaluate all students with disabilities in the district who are in need of special education, and shall maintain a register containing the name of each child with a disability who resides in the district, the nature of such child’s disability, the educational placement and setting of the child, and other student-specific data to comply with federal regulations. The board of education or trustees of the school district are required to “furnish suitable educational opportunities for children with handicapping conditions by one of the special services or programs” set forth in the statute.

 N.Y. Educ. Law §4403. Duties of Education Department. The statute outlines the duties of the education department with respect to “children with handicapping conditions”, including:

to maintain a “statistical summary” of the number of handicapped children who reside within the state and the nature of their handicaps and to use all means and measures necessary to adequately meet the physical and educational needs of such children”;

to “stimulate all private and public efforts designed to relieve, care for or educate children with handicapping conditions and to coordinate such efforts with the work and function of governmental agencies”;

to “formulate such rules and regulations pertaining to the physical and educational needs of such children as the commissioner of education shall deem to be in their best interests”; and

to “develop and distribute a handbook for parents of handicapped children” to explain the “financial and educational obligations of the state”, the special services available and the legal procedures “available to an aggrieved parent or legal guardian of a handicapped child”.

 Fam. Ct. Act § 236. Powers of the family court with regard to certain handicapped children. This statute provides that where certain children appear to be in need of special education services, “including transportation, tuition or maintenance”, an order may be made for the education of the child in his/her home, a hospital or other suitable institution, and the expenses (when audited and approved by the court) will be borne by the county or city of New York thereof where the child is domiciled when application is made for such an order.

State and Community Resources

 Advocates for Children of New York City Advocates for Children of NYC offers a toll-free Education Hotline, parent education and training programs, and over ten guides for parents with children with special needs, including how to secure appropriate education services for your preschool age child, special education services in NYC public schools, a timeline of the special education assessment and referral process, and more. www.advocatesforchildren.org/guidesbytopic.php#sped

 The Children's Evaluation and Rehabilitation Center at the Rose F. Kennedy University Center For Excellence In Developmental Disabilities The Children's Evaluation and Rehabilitation Center (CERC) at the Albert Einstein College of Medicine provides a broad spectrum of clinical services for infants, children, adolescents, and, despite its name, adults, with problems that include physical, developmental, language, and learning disabilities. www.einstein.yu.edu/centers/childrens-evaluation-rehabilitation/

 Families Together in New York State Families Together is a non-profit, family-run organization that strives to establish a unified voice for families of children and youth with social, emotional and behavioral challenges. Their mission is to ensure that every family has access to needed information, support and services. It is the Statewide Family Network (SFN) in New York. www.ftnys.org

 Include NYC Include NYC provides information and referral, case management and support, individual and systemic advocacy, parent and professional training, and library and information services to New York City parents and caregivers of children with disabilities and special needs and to the professionals who work with them. www.includenyc.org

 NYC Services: Developmental Disabilities Mental Retardation and Developmental Disabilities Service and Information offers an online directory of providers to NYC residents. The website outlines programs and services available to NYC residents with developmental disabilities. www.nyc.gov/html/doh/html/mental/mrdd-directory.shtml

 New York Directory of Special Needs and Disability Resources Gathering information and connecting with organizations in your area is an important part in achieving success for yourself or your loved one. Special Needs Stop is proud to offer a listing for Special Needs Resources for both state and national. Also included are Special Needs Resources offering support to family members and caregivers. Special Needs Stop directory is a starting point for individuals to gather information in regards to national and state organizations providing services for individuals with special needs and/or disabilities and their family members. It important to conduct your own research of any individual, organization, product or service included in Special Needs Stop Resource Directory. The listing of an individual or organization on this site is not intended as an endorsement of that individual or organization or any products or services they may offer. o Big Apple Day Program "summer camp experience for kids who need extra support and attention" o Camp Mark Seven "Summer camp for the Deaf, HOH and cochlear implant children" o Camp Oakhurst "Summer camp and year round respite program for physical disabilities" o Cradle Beach Camp "Where childrens spirits soar" o Gallop NYC "Changing the lives of New Yorkers with disabilities" o Ramapo for Children "helps young people learn to align their behaviors with their aspirations" o Southampton Fresh Air Home "Residential camp for physically challenged children ages 8 through 18" o United Cerebral Palsy of New York City "direct services, technology and advocacy" o Camp Huntington "A Special Camp for the Special Camper" o Camp Northwood "recreational programming and intentional focus on social skill development" o Center for Spectrum Services "Brightening the lives of people with Autism" o Easter Seals New York "services to all people with disabilities or special needs and their families" o Our Victory Day Camp "For children with learning disabilities and/or attention deficit disorder" o Resources for Children with Special Needs, Inc. "Equity, access & love for young people with disabilities in NYC" o Sunshine Campus "Where kids have no barriers to fun" http://www.specialneedsstop.com/new-york-resources

 New York Families for Autistic Children: Helping Parents... Help Their Children... One Family at a time. Providing support, education, recreational and socialization programs is just a small facet of what we do. Working together with professionals in the field, amazing, dedicated parents, grandparents and other family members, we innovate. We design cutting-edge programs that challenge our individuals to learn, develop and grow to maximize their full potential. nyfac.org

 NYU Special Needs Resources Some children have needs that are not fully served by a typical school curriculum and parents often struggle to ensure an appropriate educational experience and a secure future for their special needs child. When a child has been diagnosed with a special need or learning delay, it is important for parents to know your rights and learn about the free quality special education services provided by the Department of Education. Parents can also stay informed and feel supported by connecting with the many resources available to help. A brief list follows. https://www.nyu.edu/employees/life-wellness/family-care/education-options- supports/special-needs.html

 Parent to Parent of New York State Parent to Parent of New York State is a statewide organization known for supporting families of individuals with special needs. It is the Family Voices State Affiliate Organization, the federally-fundedFamily-to-Family Health Information Center, and the Parent-to-Parent (P2P) program in New York. http://www.parenttoparentnys.org/

 Wrightslaw Yellow Pages for Kids: New York Find educational consultants, psychologists, diagnosticians, health care specialists, academic tutors, speech language therapists, advocates and attorneys. You will also find government programs, grassroots organizations, special education schools, and parent support groups. http://www.yellowpagesforkids.com/help/ny.htm