What Happens to Child Support When a Special Needs Child Reaches 18?

By Amy A. Edwards

Before 1979, North Carolina parents had a legal obligation to support their child if he or she was mentally or physically incapable of self-support upon reaching age 18, the age of majority. There was considerable debate about whether to keep parents’ responsibility in place or end support at age 18. Now, although there aren’t any specific child support laws for children who have special needs, support can be extended to a maximum age of 20 in certain circumstances. Support can’t be ordered past age 20 unless the parent signs a contract saying so.

Child Support Law

In North Carolina, unless there’s a contract that says otherwise, child support continues after age 18 if “the child is still in primary or secondary school when the child reaches age 18.” In that event, support continues until “the child graduates. . . ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first.” NC Gen. Stat. §50-13.4.

Non-Traditional Progress

In 2001, forty years after repealing the statute that required parents to support their child if he or she was incapable of self-support, our Court of Appeals made a small step towards helping special needs children when it clarified that special needs children aren’t penalized just because they are not in a traditional high school.

John Hendricks had Down Syndrome and attended a special program in a high school that taught “vocabulary and activities of daily living such as how to count money.” When he reached the age of 18, his mom asked the court to end her child support obligation because he wasn’t making satisfactory academic progress towards graduation. He wouldn’t receive a traditional high school diploma. But John’s teacher and school counselor testified that “John’s attendance at school is in his best interests, [and] that he would continue to benefit in the future from the curriculum.”

The Court of Appeals held that John was making satisfactory academic progress toward a non-traditional graduation, and it was equivalent to a traditional graduation. Child support would remain in place up to age 20 so long as John made progress in his program. The Court wrote: If John were not mentally disabled but instead was enrolled in a traditional high school curriculum, it is clear support would be continued. To treat a mentally disabled child any differently than a mainstream child in terms of support obligations would be patently unfair, against public policy and not in keeping with the legislative directive.

Enforceable Agreements

If a parent agrees in an enforceable contract to support a child past the age of majority, the court will enforce it. This is most commonly found in separation agreements when a parent agrees to pay some share of college expenses. A court can’t order a parent to pay for college expenses because the child is an adult but when parents agree to share college expenses in a contract, it will be upheld. It is the same when parents agree to pay support until a certain age. If a parent relocates to North Carolina from another state where 21 is the age of majority, for example, their separation agreement that requires paying until the child reaches 21 will be enforced here.

Other Considerations

Parents should make efforts to talk with financial and legal professionals about supporting their special needs child, especially as the child transitions into adulthood. There are government benefits that come into play, sometimes before the age of 18. Payment of support can be tailored so that the support payments don’t jeopardize those benefits. Parents should consider how their estate planning can protect those benefits. For example, there is a special needs trust that can maximize what the disabled child receives while preserving as many benefits as possible.

Custody After Age 18

Although the original statute that required support obligations for special needs children was repealed, the wording of it was edited to make things slightly more convenient for the parents when it came to custody. If the parent does not already have guardianship (different from child custody) of a special needs child, the court can give “a person who is mentally or physically incapable of self-support upon reaching his majority” the same protections as a minor child. This means a District Court Judge continues to have the authority to create or modify a custody order for a disabled adult, which is useful when the parents dispute when they will spend time with their child.

NC Gen. Stat. §50-13.4
NC Gen. Stat. §50-13.8
Hendricks v. Sanks, 143 NC App. 544 (2001)

Amy A. Edwards is a family law attorney at Amy Edwards Family Law in Greenville, NC. She is certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. 2019. ©