Alabama Law That Impacts Children with Special Needs

Alabama Law that Impacts Children with Special Needs

Child Support

· Ala. R. Jud. Admin. 32(C)(4).

Allows a trial court to make additional awards, in excess of basic child support, for extraordinary medical, dental, and educational expenses if it determines that such awards are in the best interest of the child.

· Ala. R. Jud. Admin. 32(A)(1)(e).

Allows a trial court to deviate from the guidelines to promote the best interest of the child.

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

· Ex Part Cohen, 253 So. 2d 253 (Ala. 1999).

The Supreme Court established a two-part test for determining whether a disabled adult

child is entitled to support. The trial court must:

1) Determine that the adult child is not capable of earning an income sufficient to provide for his or her reasonable living expenses, and

2) That the adult child’s mental or physical disability is the cause of his or her inability to earn that income.

After applying this test, the court must determine the adult child is entitled to post minority support, and at that point apply the guidelines as previously determined in De Mo. If the court determines that additional awards for extraordinary medical, dental, and educational expenses are necessary, subsection (C)(4) of Rule 32, A. R. J. A., permits such an award. Rule 32 (A)(1)(e) further allows the court to deviate from the guidelines “to promote the best interest of the child.”

· Ex Parte Brewington, 445 So. 2d 294 (Ala. 1983).

The court found that a disabled child was entitled to the support of his parents past the age of majority. More specifically, a disabled child should receive support until no longer dependant on his parents.

· Martin v. Martin, 494 So. 2d 97 (Ala. Civ. App. 1986).

The age of the disabled child at the time of the divorce is immaterial as long as the disability occurred during the child’s minority and continues thereafter.

· Elliott v. Bretherick, 555 So. 2d 1109 (Ala.Civ. App. 1989).

If there is no evidence that the illness or disability existed during the age of minority, the decree may not be modified to compel post-minority support.

· Martin v. Martin, 623 So. 2d 1167 (Ala. Civ. App. 1993).

The amount of support is determined after giving consideration to the child’s needs, the child’s income through social security or other sources, and the parent’s ability to respond to the child’s needs.

· De Mo v. De Mo, 679 So. 2d 265, (Ala. Civ. App. 1996).

Cases have specifically determined that the child support guidelines should be used in establishing child support for disabled children.

Credit for Child Support because of Supplemental Security Income

· Lightel v. Myers, 791 So. 2d 955 (Ala. Civ. App. 2000).

An offset against child support is appropriate where the child receives income from a third-party source. Also, a non-custodial parent is entitled to have credited against his or her child-support obligation when the Social Security disability benefits are paid for the benefit of a child due to his non-custodial parent’s disability.

However, SSI benefits received by a disabled child is designed to supplement the income and the resources available to that child. The court here refused to offset non custodial parent’s support obligation by the amount of SSI benefits the children received because to do so would have reduced the children's income below the federal minimum income level and increased their need for federal assistance.

Custody, Visitation, and Relocation

· Ala. Code § 30-3-169-3.Custody considerations.

(a)Upon the entry of a temporary order or upon final judgment permitting the change of principal residence of a child, a court may consider a proposed change of principal residence of a child as a factor to support a change of custody of the child. In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following:

(2)The age, developmental stage, needs of the child, and the likely impact the change of principal residence of a child will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

Special Needs Trust or Disposition of Medical Assistance Income Trusts

· Ala. Code § 19-3B-1101. Protection of special needs trusts and other similar trusts for disabled persons.

Notwithstanding the provisions of the Alabama Uniform Trust Code that may otherwise be applicable to a trust, no provision thereof shall apply to any special needs trust, supplemental needs trust, or other similar trust established for a person with a disability as a beneficiary, including without limitation, any trust established pursuant to the provisions of42 U.S.C.S. § 1396p(d)(4)A or C, as amended from time to time, or other similar federal or state statute, to the extent that such provision would disqualify such trust beneficiary at any time from eligibility for public needs-based assistance benefits for which the beneficiary would otherwise qualify.

Adoption Subsidy

· Ala. Code §26-10-23. Generally.

The State Department of Human Resources shall establish and administer an ongoing program of subsidized adoption. Subsidies and services for children under this program shall be provided out of funds appropriated to the State Department of Human Resources for the maintenance of children in foster care or made available to it from other sources.

· W.R. v. C.R., 75 So. 3d 159 (Ala. Civ. App. 2011).

Prior to their divorce, the father and mother adopted four siblings and, under the Alabama Subsidized Adoption Act, Ala. Code § 26-10-20 et seq., received monthly adoption subsidy payments from the State. The issue of how adoption subsidies should be treated with regard to an award of child support was one of first impression in Alabama. The court concluded that an adoption subsidy from the State was not a replacement of or substitute for an income source. Instead, the subsidy was supplemental to the adoptive parents' income and could not be treated as a credit against the father's child-support obligation.

State and Community Resources

· Alabama Council on Developmental Disabilities

Increase opportunities so that people with developmental disabilities and their families improve their access to and use of services and supports in the communities of their choice. Provide education/information and public awareness so that people with developmental disabilities and their families participate in the communities of their choice. ACDD will promote, support and influence public policy that improves productivity, independence and inclusion of people with developmental disabilities.

http://acdd.org/resources/state-agencies/

· Alabama Disabilities: Agencies and Organizations

The AL-APSE, Association for Persons Supporting Employment First is part of a 5,000-member organization with chapters in over 31 states. APSE, The Network on Employment was formed to improve and expand integrated employment opportunities, services, and outcomes for persons experiencing disabilities. Supported employment enables people with disabilities who have not been successfully employed to work and contribute to society. Supported employment focuses on a person's abilities and provides the supports the individual needs to be successful on a long-term basis.

www.al-apse.org/links/Alabama.htm

· Alabama Disabilities Advocacy Program

The Alabama Disabilities Advocacy Program (ADAP) is part of the nationwide federally mandated protection and advocacy (P&A) system. ADAP's mission is to provide quality, legally-based advocacy services to Alabamians with disabilities in order to protect, promote and expand their rights. ADAP's vision is one of a society where persons with disabilities are valued and exercise self-determination through meaningful choices, and have equality of opportunity

www.adap.net

· The Arc of Shelby County: Resources

At The Arc of Shelby County, our mission is to provide tools that build communities where every person belongs, where each person has the opportunity to build the dreams that add up to a happy and productive life. The Arc of Shelby County exists to provide a support system for infants, children and adults who face the daily challenges of developmental disabilities and delays. We serve individuals with developmental disabilities by offering a relationship that lasts as long as you need it, to be used however you see fit. It is our belief that you and your family are best suited to determine the types of services and supports you need. You are best suited to make your goals, plan your life, dream your dreams.

www.thearcofshelby.org/resources/

· Disabilities Resources

Disability Resources, inc. is a nonprofit 501(c)(3) organization established to promote and improve awareness, availability and accessibility of information that can help people with disabilities live, learn, love, work and play independently. We disseminate information about books, pamphlets, magazines, newsletters, videos, databases, government agencies, nonprofit organizations, telephone hotlines and on-line services that provide free, inexpensive or hard-to-find information to help people with disabilities live independently.

www.disabilityresources.org/ALABAMA.html

· Everest Academy

The Alabama Homeschooling website was created to keep Alabama homeschoolers "in the know". There is so much homeschooling information out there, it can be a little overwhelming and sometimes a little hard to find. The Alabama Homeschooling website is our attempt to make this part of homeschooling a little easier. The Alabama Homeschooling website is the official website of Everest Academy but offers information FREE to all Alabama homeschoolers. This link provides resources geared directly towards home-schooled children with varying kinds special needs. www.alabamahomeschooling.com/2010/01/special-needs.html

· Family Voices of Alabama

Family Voices of Alabama (FV of AL) aims to achieve family-centered care for all children and youth with special health care needs and/or disabilities. Through our national network, we provide families tools to make informed decisions, advocate for improved public and private policies, build partnerships among professionals and families, and serve as a trusted resource on health care. Family Voices of Alabama was awarded a grant from the Maternal and Child Health Bureau to increase our services to the families in Alabama by establishing a Family-to-Family Health Information Center (F2F HIC). F2F HICs were established in all States and the District of Columbia by the Family Opportunity Act / Deficit Reduction Act of 2005. The Affordable Care Act of 2010 extended the F2F HIC Program through fiscal year 2012.

www.familyvoicesal.org

· Learning Disabilities Association of Alabama

Is a non-profit, parent-professional organization. We assists parents and professionals in reaching an understanding about the best way to provide an appropriate education for students whose academic achievements are significantly less than their intellectual ability; fosters public awareness of learning disabilities through newsletters, films and videotapes; provides a source of reference literature on learning disabilities; assists in the establishment of local LDA affiliates which can more directly serve the specific needs of individual communities; and presents annual state conferences where professionals and parents share knowledge and information.

ldaal.org/Graphic.aspx?url=/pages/Links

· Muscogee Moms

The Muscogee Moms Special Needs Resources page provides a list of community resources and healthcare providers for parents and children with disabilities in the Columbus, Phenix City & Fort Benning area. Resources and topics include: Early intervention, support groups, Chattahoochee Valley autism support group, Chattahoochee Valley Down Syndrome support group, diagnostics & evaluations, academic/educational services, ABA providers/behavior specialists, occupational & physical therapy, speech & language pathology, equine-assisted technology, social skills programs, counseling and summer programs.

www.muscogeemoms.com/business-directory/special-needs/

· Special Needs Resource Project: Alabama

After being overwhelmed on a daily basis by phone calls from parents needing help we could not deny the obvious need to make the wealth of information locked up in Linda's head available on a much broader scale. The question was...how? After identifying the need it wasn't long before we realized the best way to do this would be through a website where the information would become readily available to the entire public (and Linda could take some time to have the phone surgically removed from her head). It is our sincere hope that the work we have done will be an invaluable resource for those seeking help in navigating the expansive world of special needs. Resources and topics include: military, advocacy, government and private agencies/assistances programs, child care, disability specific organizations, early intervention, education, housing programs and much more.