Hosted By: Diana Shepherd, the Editorial Director of Family Lawyer Magazine, divorcemag.com, and divorcemoms.com
Guest Speaker: Stuart Skok, a Maryland family law attorney, Stuart Skok Law
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Read the Transcript of this Podcast Below.
If you’re a parent going through a divorce, your top questions are likely about child custody or possibly child support. If you’re the divorcing parent of a child with special needs, your child-related concerns may be doubled. I’m Diana Shepherd, the Editorial Director of Divorce Magazine, and my guest today is family law attorney Stuart Skok. She is here to discuss child support and child custody in Maryland, and what happens when a special needs child is involved in a divorce case. As the parent of a special needs child as well as being a family lawyer, Stuart brings both professional and personal experience to today’s discussion.
Let’s dive right into child support. How does the court calculate the amount and duration of child support in Maryland?
Stuart Skok: In terms of duration, child support in Maryland continues until the child turns 18 or until they graduate from high school, but not beyond age 19. It also terminates in the event of the child’s death, marriage, or emancipation. To calculate child support, Maryland has its own child support guidelines like many states. There are two worksheets: worksheet A for sole custody and worksheet B for shared custody. Worksheet B applies to non-custodial parents when they have 25% or more of the overnights with their children each year. They’re designed in a way that as the overnights increase the child support decreases. The reason is that the more time a child spends with a parent, the more that parent spends on their daily care.
Under the worksheet, the Maryland court factors in several things: gross incomes, overnights with each parent, the number of children, and then certain expenses. The gross incomes can be lowered if one parent is paying alimony or if there is child support owed to a child not shared by these parents. Once the basic support is determined based on those factors, the court will add in certain expenses that the parents share pro rata according to the percentage of income; these expenses include work-related daycare, medical expenses, health insurance premiums, school, and transportation. However, even though there are guidelines in Maryland, they do not apply if the parents’ combined incomes are $30,000 per month or more, which is $360,000 per year. In those higher-income cases, the court has the discretion to set the amount based on the actual needs of the child. The court can always deviate in any situation, whether the guidelines apply or not, for good cause.
You mentioned that child support usually covers necessities such as food, clothing, housing, education, and health insurance. However, if that basic amount doesn’t cover the child’s normal expenses – which could be for private school, sports, or extraordinary medical expenses – who pays for them?
Generally, if a parent wants those kinds of expenses beyond guideline amounts, they have to first prove the actual cost and the necessity of continuing that cost for the children. The court will then look at the family history of how long has this expense continued, and there are other case law factors for the court to consider in determining whether or not a cost for things like private schools should be continued. And if so, they may have the parties share it pro rata according to their incomes, although not necessarily. The court generally aims to continue an expense that a child enjoyed pre-separation to give the child some consistency post-separation.
For example, take private school: if a child just began private school in the year prior to the separation, the court might not continue that expense unless there’s a particular educational need for the child to attend that school. Whereas if a child had attended private school for several years, the court might continue that cost regardless of a particular educational need, at least until there’s a natural transition between middle and high school.
That sort of analysis would also apply to things like sports, extracurricular activities, or medical expenses. The court will balance the benefits and history of having that expense versus the parent’s ability to pay and if there is a real hardship for the parents. In the case of activities, the court will also consider how they impact each parent’s custodial time. There’s a new division of custodial time after the separation, and perhaps it’s not logistically possible to continue an activity. Those are the kinds of things that the court will look at. Because the court has so much discretion and it’s unpredictable what a court may do for these kinds of expenses, I often recommend parents consider a parent coordinator, somebody they can hire who is less expensive than a lawyer, to help them make these decisions out of court, quickly, and for far less cost.
You were just talking about education expenses, such as private school. Let’s take that one notch further: if there’s no qualified tuition plan in place, who pays for college? Can the Maryland courts require one or both parents to pay their children’s college expenses?
Unless the parents agree in writing – such as in a separation agreement or a parenting plan – to pay for college, the court cannot order it because those expenses occur after child support legally ends. But if the parents do agree in writing, the court will enforce that agreement and will compel the parents to pay what they agreed to pay in that agreement. And they’ll also compel parents to comply with FAFSA filings and requirements because that impacts the amount of contractually owed tuition, even if it’s not in the agreement that you have to fill out the FASFA forms. This is another area where parents can get into trouble if they don’t understand how FASFA works because they have to designate the custodial parent for purposes of determining the tuition – which is based on the custodial parent’s household income. For example, if you have a 50-50 custody schedule, parents need to decide in advance who will be the custodial parent for FASFA purposes. In addition, if there is an agreement that the court can enforce, I always recommend parents set up some kind of savings plan since they will have to honor that agreement when that time comes.
Let’s move from child support to child custody, a very contentious issue for a lot of divorcing parents. How do the courts define custody in Maryland, and what are the most important factors that the courts will consider when allocating custody?
The court considers two types of custody in Maryland, physical custody and legal custody. The court goes through an exhaustive number of factors enumerated in the Maryland rules, but the overarching factor is what is in the best interest of the child with the parent’s interests secondary to that. As to physical custody, this is where the child physically resides overnight during the school year, for summer vacations, holidays, etc. The court will order either sole or joint custody, but these terms can be a little confusing. Sole custody does not mean that the child is with one parent all of the time: it means that the child is with one parent 75% or more of the overnights. Joint physical custody doesn’t always mean equal time-sharing, but it does mean that the non-custodial parent has more than 25% of the overnights. Those are the two different kinds in terms of physical custody.
Legal custody is where the court decides who has the authority to make major decisions affecting the child’s welfare, such as school, religion, extracurricular activities, or medical decisions. Anything that requires a parent’s written consent is a legal custody decision, but the day-to-day decisions the parents make from discipline to parenting style are not legal decisions and are up to the parent who the child is with.
For legal custody, the court can do one of three things: they can order sole, joint, or tie-breaking authority in Maryland. If a parent has sole legal custody, which is rare, they could make any decision without consulting or discussing it with the other parent. Sometimes this happens when a parent is entirely absent. Joint legal custody, which is quite favored, is where both parents get the equal right to make decisions for the children and can veto decisions they don’t agree with. The third type is tie-breaking authority, where the court may elect one parent can make the final decision for select issues or all issues. It’s otherwise joint custody, but they can make a final decision in the event of a dispute if there’s an impasse so long as the parent making that final decision first makes a good faith effort to resolve the matter before making the decision. That often helps the decisions be made timely as opposed to them being dragged out or either parent using their veto power.
Are children allowed to testify regarding which parent they want to live with?
The court will allow testimony from children, but really as a last resort because forcing a child to testify in court, putting them in the middle of their parents’ custody dispute, is traumatic for them – and they don’t want children to think they’re making the decision because they’re not. Children can express their views but, ultimately, the court will decide what’s best. If the court allows a child’s testimony, it is often done what’s called in camera, which means the child will be brought into the judges’ chambers outside of the courtroom. Their parents and the lawyers are not present, although the interview is recorded. The judge will determine the questions and interview the child, and after that interview, the judge will relay on the record to counsel and the parents what was said or how the judge interpreted what was said.
The parents can order a copy of the transcript if they want to after the hearing. Parents need to understand that it’s very risky to ask the court to allow their child to testify. The court doesn’t look favorably on a parent who is willing to put their child in that position. The reason for calling the child has to outweigh any possible negative inference the court may make against them.
There’s one other alternative to bringing a child into court and that’s for the court to appoint a best interest attorney, also called a BIA, who represents the child and can represent what the child’s views are as well as what that attorney believes is in the child’s best interest. The court can appoint a BIA on its own initiative or either parent can ask for that, and those costs are allocated according to either agreement or by order of the court.
Let’s move to special needs children, which I know is a subject that’s close to your heart. What are the decisions and challenges that the court faces when determining custody for a child with special needs?
Special needs are coming up more and more in divorce cases, especially in the last decade, in line with the increased incidences of special needs children. It changes the focus in divorce cases – for parenting time as well as support and property division. Special needs can include anything that impacts the child’s daily life and independence, from disorders like Down Syndrome or Autism to other general intellectual delays or physical disabilities. When parents of a special needs child are going through a divorce, they should hire legal professionals with knowledge and experience in this area to make sure those unique needs are negotiated and addressed by the court. Certain things that really need to be tended to can be overlooked if the legal professionals don’t understand the special needs or don’t have experience with that.
I am a parent of a special needs child. My son has Down Syndrome, and it’s a whole different world that you live in as a parent with a special needs child. For example, legal custody. You can’t simply agree to joint legal custody without specifics on how decisions are going to be made and what’s going to happen if there are disputes. Each year for a child with special needs, parents must negotiate Individual Educational Plans (IEPs) or 504 plans, which are other accommodation plans less than an IEP, and these decisions have to be made quickly. Schools are not going to hold off on making decisions as to what they think is appropriate for a child while the parents are in a dispute about that. You must set forth the protocols. How these decisions will be made is really important. The court in these cases, if they’re aware of the needs and special decisions to be made, will often appoint additional professionals to help along the way, such as a parent coordinator. They might appoint a custody evaluator to provide recommendations or other evaluators on a particular issue. But above all, the most important thing the court looks at is what’s best for this child, everything else is secondary.
Let’s now look at the support angle for this question. How do the Maryland courts handle child support for special needs children? Specifically, what kinds of expenses could the court consider reasonable and what happens after the child attains the age when child support would normally end?
If a child has special needs, child support may not end at age 18 (or up to 19 if they’re still in high school). The child support obligation might in fact continue indefinitely depending on the child’s needs. Maryland requires parents to provide for what’s called adult destitute children, which is basically defined as an adult with a mental or physical disability that makes it difficult for them to meet their reasonable living expenses. If that exists, the parents will be ordered to pay sufficient support to meet their expenses. Oftentimes, the court will simply look to the child support guidelines, plug in the factors that apply, and calculate it on that basis. I always recommend that parents should try to negotiate the appropriate support arrangement for their special-needs child outside of court and agree upon periods of time to reevaluate that as opposed to having the court set an amount based on guidelines that may or may not be appropriate.
What parents also need to understand is the impact of child support orders on state benefits and resources. If you have a standard child support order where one parent is paying child support to the other, that is considered income to your child and could disqualify the child from Medicaid and other important resources. There are ways around this that legal professionals who work with special-needs children know; if you don’t hire professionals who understand these cases, you could really be disadvantaging your child. Once they disqualify for benefits, it’s very hard to get those benefits back. As your child is nearing the age of 18, if you have a child who may need ongoing support, make sure the support order will not interfere with what they will need in terms of protections with state benefits going forward.
Stuart Skok dedicates 100% of her practice to family law and matrimonial cases both in and out of court. The owner of Stuart Skok Law in Rockville, Maryland, Stuart has practiced family law for over 25 years. Voted Washington DC’s Collaborative Lawyer of the Year by Best Lawyers for 2023, she’s one of the few family law attorneys with the knowledge and the experience to offer all approaches to resolve a divorce or family law case. That includes negotiation, litigation, collaborative law, mediation, and arbitration. If you need help with a child custody or child support issue in Maryland, please visit www.stuartskoklaw.com.