Indianalaw That Impacts Children with Special Needs

IndianaLaw that Impacts Children with Special Needs

Child Support

Ind. Code § 31-16-6-1(a). Order for child support — Custodial parents to open accounts at financial institutions.

(a) In an action for dissolution of marriage under IC 31-15-2, legal separation under IC 31-15-3, child support under IC 31-16-2, or establishment of paternity under IC 31-14, the court may order either parent or both parents to pay any amount reasonable for support of a child, without regard to marital misconduct, after considering all relevant factors, including:

(1) the financial resources of the custodial parent;

(2) the standard of living the child would have enjoyed if:

(A) the marriage had not been dissolved;

(B) the separation had not been ordered; or

(3) the physical or mental condition of the child and the child’s educational needs; and

(4) the financial resources and needs of the noncustodial parent.

Support for Disabled Adult-Child (Post Minority Age Support)

Ind. Code § 31-16-6-6. Termination as modification of child support; emancipation of child

(a) The duty to support a child under this chapter, which does not include support for educational needs, ceases when the child becomes nineteen (19) years of age unless any of the following conditions occurs:

(1) The child is emancipated before becoming nineteen (19) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.

(2) The child is incapacitated. In this case the child support continues during the incapacity or until further order of the court.

(3) The child:

(A) is at least eighteen (18) years of age;

(B) has not attended a secondary school or postsecondary educational institution for the prior four (4) months and is not enrolled in a secondary school or postsecondary educational institution; and

In this case the child support terminates upon the court's finding that the conditions prescribed in this subdivision exist. However, if the court finds that the conditions set forth in clauses (A) through (C) are met but that the child is only partially supporting or is capable of only partially supporting himself or herself, the court may order that support be modified instead of terminated.

(b) For purposes of determining if a child is emancipated under subsection (a)(1), if the court finds that the child:

(1) is on active duty in the United States armed services;

(2) has married; or

(3) is not under the care or control of:

(A) either parent; or

(B) an individual or agency approved by the court;

the court shall find the child emancipated and terminate the child support.

(1) parent or guardian of the child; or

(2) child;

may file a petition for educational needs until the child becomes twenty-one (21) years of age.

(d) If a court has established a duty to support a child in a court order issued after June 30, 2012, the:

(1) parent or guardian of the child; or

(2) child;

may file a petition for educational needs until the child becomes nineteen (19) years of age.

(e) If:

(1) an order was issued after June 30, 2012, that denied support for educational needs to a child who was less than twenty-one (21) years of age at the time the petition for educational needs was filed; and

(2) support for educational needs was denied based on the fact that the child was older than eighteen (18) years of age;

notwithstanding any other law, a parent or guardian of the child or the child may file with the court a subsequent petition for educational needs. The court shall consider the petition on the merits in accordance with this section and may not consider the absence of subsection (c) from law at the time of the initial filing.

Jenkins v. Jenkins, 687 N.E.2d 256 (Ind. Ct. App. 1997).

Unless child is incapacitated or has been previously emancipated, duty to support child ends when child reaches the age of twenty-one.

Liddy v. Liddy, 881 N.E.2d 62 (Ind. Ct. App. 2008).
Evidence established incapacitation of adult child, so that father's child support obligation did not terminate when child reached age of emancipation, i.e., age 21; child suffered from schizoaffective disorder which had affected his ability to pursue higher education or to work full-time, stress and added responsibilities had aggravated child's illness, and five different anti-psychotic medications child had tried had not controlled his symptoms completely, though child's last hospitalization had occurred approximately two-and-one-half years ago.

Dennison v. Dennison, 696 N.E.2d 88 (Ind. Ct. App. 1998).

Parties' 21-year-old daughter was “incapacitated,” and thus was not “emancipated,” such that father's child support obligation continued, even though daughter had worked and had spent one year at college away from home, where daughter had seizure disorder which made it difficult for her to secure employment, and none of jobs daughter held lasted more than a few weeks.

Lea v. Lea, 691 N.E.2d 1214 (Ind. 1998).

Fact that father's incapacitated adult daughter earned $144 per week working, by itself, did not establish that daughter could sustain herself completely through employment, so as to negate father's continuing postdivorce duty to support incapacitated adult daughter.

Quillen v. Quillen, 671 N.E.2d 98 (Ind. 1996).

Expert testimony that parties' 19-year-old twin daughters had ongoing counseling needs related to sexual abuse and posttraumatic stress syndrome warranted finding of “incapacity” under statute providing that duty to support child ceases when child reaches 21 years of age unless child is incapacitated; thus, father, who allegedly perpetrated such abuse, was properly required to contribute from his portion of marital property 50% of amount used to establish trust for payment of daughters' future counseling.

Free v. Free, 581 N.E.2d 996 (Ind. 1991).

Evidence established that parties' son, who had reached age 21, was “incapacitated” such that ex-husband's support obligation had to continue; son was physically disabled and, although he had acquired parttime job, it had been tailored to accommodate his disabilities, and testimony indicated that son's ability to obtain other employment would be limited; moreover, son had need for ongoing medical services to accommodate his disabilities.

Baker v. Baker, 488 N.E.2d 361 (Ind. Ct. App. 1986).

Order that husband pay $75 per week in support to his 22-year-old retarded son, was not erroneous or against logic of facts and circumstances, upon finding that son was incapable of supporting himself.

Caddo v. Caddo, 468 N.E.2d 593 (Ind. Ct. App. 1984).

No emancipation occurs if, due to illness or injury, a child becomes so physically or mentally disabled that he cannot provide for himself but must remain at home with a parent.

State ex rel. Murray v. Riggens' Estate, 328 N.E.2d 248 (Ind. Ct. App. 1975).

Generally there is a continuing duty of support by parent to unemancipated children who are so mentally or physically defective as to be unable to support themselves after coming of age, but once a child capable of his own support is emancipated, subsequent change in his condition does not revive any liability in his parents for his support.

Kizer v. Kizer, 191 N.E.2d 332 (Ind. Ct. App. 1963).

Former statute authorizing court, in decreeing a divorce, to provide for support of minor children imposed no requirement or duty of father to support adult, nonresident, physically impaired child

Corbridge v. Corbridge, 102 N.E.2d 764 (Ind. 1952).

The force of order in divorce suit requiring father to make monthly payments for support of minor child necessarily expires when child reaches his majority, and, if child thereafter becomes physically or mentally incapacitated so that father may be again charged with his support, it must be by virtue of general equity powers of the court and not by virtue of divorce statute.

Corbridge v. Corbridge, 102 N.E.2d 764 (Ind. 1952).

The emancipation of a child competent to support himself discharges the parent from obligation for his support, but if child becomes unable to support himself father's duty revives.

Pocialik v. Federal Cement Tile Co., 97 N.E.2d 360 (Ind. Ct. App. 1951).

In case of children of weak mind or body who are unable to support themselves after coming of age and remain unmarried in home of parents, parents have a continuing obligation to support.

Zakrocki v. Zakrocki, 60 N.E.2d 745 (Ind. Ct. App. 1945).

Ordinarily, a parent is under no legal obligation to support an adult child but a father is responsible for costs of care any maintenance of an adult child who is physically or mentally unable to support itself.

Supplemental Security Income

Kyle v. Kyle, 582 N.E.2d 842 (Ind. Ct. App. 1991).

The noncustodial parent’s child support obligation is not impacted by the receipt of supplemental security income under the federal Social Security Act on the behalf of a disabled child.

Holiday v. Holiday, 644 N.E.2d 880 (Ind. Ct. App. 1994).

Where the only evidence of probative value revealed that father’s sole source of income was the monthly Supplemental Security Income (SSI) payment which was completely consumed by his monthly living expenses, the trial court’s findings that he was capable of minimum earnings and that he was possessed of certain personal property was clearly erroneous, and the trial court erred in denying his motion to vacate the continuing order of contempt for nonpayment of child support.

Thompson v. Thompson, 868 N.E.2d 862 (Ind. Ct. App. 2007).

Stultz v. Stultz, 659 N.E.2d 125, 1995 Ind. LEXIS 212 (Ind. 1995), should be applied to provide for the exercise of a trial court’s discretion when faced with situations in which a child’s receipt of social security benefits should be factored into the support calculation under IC 31-16-6-1, and simply providing a dollar for dollar credit for the social security retirement benefits to the non-custodial parent would in most cases be an abuse of that discretion because this methodology does not consider the social security benefits payable to the children to be part of the parent’s in question adjusted income. In those situations where the trial court concludes that it is appropriate to give a Social Security recipient parent credit for Social Security benefits paid directly to a child, the trial court should in fact include the amount of the benefits in the recipient parent’s adjusted income for purposes of calculating the parents’ relative share of the total child support obligation; utilizing such a methodology will promote the aims of the Indiana Support Guidelines, will treat similarly situated families the same, and will provide for children receiving the same degree of support post-dissolution they had when their parents’ marriage was intact.

Child Custody

Ind. Code. § 31-14-13-2.Custody determination — Best interests of child.

The court shall determine custody in accordance with the best interests of the child. In determining the child’s best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:

(1) The age and sex of the child.

(2) The wishes of the child’s parents.

(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child’s parents;

(B) the child’s siblings; and

(5) The child’s adjustment to home, school, and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) [IC 31-14-13-2.5(b)] of this chapter.

Modification

Ind. Code §31-14-13-6. Modification of custody orders.

The court may not modify a child custody order unless:

(1) modification is in the best interests of the child; and

(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 2 [IC 31-14-13-2] and, if applicable, section 2.5 [IC 31-14-13-2.5] of this chapter.

Special Needs Trust and a Ward’s Estate

A Special Needs Trust may be created in Indiana if it conforms with the provision s of 42 U.S.C. § 1396p(d)(4)(A). This statute permits the creation of a trust, often referred to as “supplemental needs trust,” “special needs trust,” or “disability trust,” the assets of which are excluded from determining an individual's Medicaid eligibility.

The code section states as follows:

(A) A trust containing the assets of an individual under age 65 who is disabled (as defined in section 1382c(a)(3) of this title) and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.

Adoption Subsidy

Ind. Code § 31-19-26.5-2. “Child with special need” defined.

As used in this chapter, “child with special needs” means a child who:

(1) is a hard to place child; and

(2) meets the requirements of a special needs child, as specified in 42 U.S.C. 673(c) and the rules of the department applicable to those requirements.

42 U.S.C.S. § 673(c). Adoption and guardianship assistance program

For purposes of this section--

(1) in the case of a child who is not an applicable child for a fiscal year, the child shall not be considered a child with special needs unless

(A) the State has determined that the child cannot or should not be returned to the home of his parents; and

(B) the State had first determined (A) that there exists with respect to the child a specific factor or condition (such as his ethnic background, age, or membership in a minority or sibling group, or the presence of factors such as medical conditions or physical, mental, or emotional handicaps) because of which it is reasonable to conclude that such child cannot be placed with adoptive parents without providing adoption assistance under this section or medical assistance under subchapter XIX of this chapter, and (B) that, except where it would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child, a reasonable, but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assistance under subchapter XIX of this chapter; or

(2) in the case of a child who is an applicable child for a fiscal year, the child shall not be considered a child with special needs unless--

(A) the State has determined, pursuant to a criterion or criteria established by the State, that the child cannot or should not be returned to the home of his parents;

(B)(i) the State has determined that there exists with respect to the child a specific factor or condition (such as ethnic background, age, or membership in a minority or sibling group, or the presence of factors such as medical conditions or physical, mental, or emotional handicaps) because of which it is reasonable to conclude that the child cannot be placed with adoptive parents without providing adoption assistance under this section and medical assistance under subchapter XIX of this chapter; or

(ii) the child meets all medical or disability requirements of subchapter XVI of this chapter with respect to eligibility for supplemental security income benefits; and

(C) the State has determined that, except where it would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of the parents as a foster child, a reasonable, but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assistance under subchapter XIX of this chapter.

State and Community Resources

The Arc. Indiana.

The Arc of Indiana is committed to all people with intellectual and developmental disabilities realizing their goals of learning, living, working and fully participating in the community.

Ask About Special Kids

ASK is Indiana’s Parent to Parent organization that works throughout the state to give support, answer questions and provide information and resources to families of children with special needs. ASK staff are extensively and continually trained as well as parents of children with special needs; therefore, we can help other families and professionals understand the various systems that families encounter related to special needs. ASK has a parent liaison in each region of the state with our central office location in Indianapolis. ASK’s mission: Helping children with special needs live better lives by educating, empowering and connecting their families. We define children with special needs as children with: Physical, mental, emotional disabilities Developmental delays Chronic or terminal illnesses Mental health concerns Behavioral disorders Learning disabilities and educational delays Children who have risk factors or who are showing signs of a suspected disability As a parent, once you make contact with ASK you will be connected with a staff parent liaison who is trained extensively and an experienced parent of a child with special needs. Parent liaisons focus on teaching families how to anticipate child and family needs, identify appropriate resources, and access community systems to help them meet the needs of their children. Additionally, ASK’s parent liaisons follow up with each family that contacts us. So...even if there is something that you forget to address during that first call you make, you will have plenty of contact with your liaison to answer your questions and anticipate future needs.

Center For Possibilities.

Center for possibilities dedicated to improving the quality of life of children and adults with developmental disabilities since 1960. The mission of Center for Possibilities is to improve the quality of life for children and adults with developmental disabilities and their families. Center for Possibilities believes that a person’s worth is not diminished by a disability and that people with disabilities are entitled to full life experiences. Our goals are to: Increase access to quality programs by removing financial and enrollment barriers Increase level of independence/highest level of functioning of our students Decrease feelings of loneliness and isolation for students and their families Increase awareness of programs/services for people with disabilities and their families Increase community awareness of the needs and abilities of people with physical and cognitive disabilities Decrease stress on families/caregivers providing long-term care of children/adults with developmental disabilities.