Protecting Public Benefits from Child Support Payments

Newsletter | Oct 9, 2017 | Shannon Laymon-Pecoraro, CELA

The majority of us know that a parent has a duty to support his or her minor children, and that the law presumes that upon reaching majority, a child is capable of self-support. Very few people understand that the responsibilities of a parent may extend beyond the age of majority when the child is disabled and unable to support him or herself. In Virginia, a court order may require a parent to support an a person over that age of 18 who is “severely and permanently mentally or physically disabled,” provided the disability began before age 18 (or 19 if certain factors are met) and, as a result of such disability is unable to live independently and support himself. The affect of such an order may have a significant impact on the child if not carefully considered.

The purpose of requiring child support is to ensure a child can experience a similar standard of living as he would have if the parents lived in the same household. Virginia utilizes a guideline calculation to determine the support obligation, although the parents can voluntarily enter into their own agreement. The public benefits being received by the child may factor into what the child support payment should be.

Although many parents want to offset their support obligation by public benefit income received by the child, it is unlikely to occur if the child is receiving Supplemental Security Income (SSI). Nearly all courts that have addressed the issue have determined that since the benefit is not a reflection on the work history of a retired or disabled parent, no offset should be made. If, however, the child receives a benefit other than SSI from the Social Security, it is likely the result of a retired or disabled parent and a support obligation may therefore be reduced.

Pursuant to the Social Security Administration and the Department of Medical Assistance Services, child support is a form of unearned income to the child. The Social Security Administration will disregard the first $20 of unearned income, and thereafter reduce an SSI benefit dollar-for-dollar. If SSI is lost, the child will lose his or her automatic entitlement to Medicaid and will need to meet the requirements of the traditional or long-term care Medicaid program.

The good new is that the Code of Virginia specifically permits the court to order child support payments be made to a special needs trust or an ABLE savings trust account. The good news is that the Social Security Administration has determined that when a court requires child support payments into a first party special needs trust, such payments will not be considered income to the child, and will therefore not detrimentally impact that child’s benefits. In contrast, although formal policy has not yet been published, it is believed that court ordered payments into an ABLE savings trust account will still be considered income to the child, and therefore cause a reduction in benefits.

Ask Kit Kat – Wildlife Healers

Hook Law Center:  Kit Kat, what can you tell us about the South Florida Wildlife Center which specializes in the rehabilitation of small animals?

Kit Kat:  Well, this is an interesting story. This particular center, which is located in Ft.Lauderdale, has developed an expertise over the last 10 years in rescuing baby opossums. Opossums are the only marsupial in the United States. At first, it was trial and error. Baby opossums have a very different digestive system, than other young mammals and young birds. However, through collaboration with researchers in Australia, which has the bulk of the world’s marsupials, techniques improved drastically. Baby opossums of 17 grams are now regularly saved and eventually re-released into the wild.

The discovery that made the critical difference was what to feed them. Regular formula for other baby animals did not work. It contained lactose, and baby opossums cannot digest that. They would do OK with it for a few days, but then diarrhea took over. Eventually, they discovered by diluting it with water, the babies could handle it. They also began giving them injections of saline which helped them not get dehydrated. In the wild, the mother opossum has antimicrobials in her pouch as well as secretions in her saliva which helped nurture them. Remember that baby opossums generally stay in the mother’s pouch for about 85 days, as they continue to develop to the point that other baby mammals are at birth—eyes fully open and moving around significantly.

So kudos to the South Florida Wildlife Center, which is HSUS-affiliated! They not only save baby opossums, but other wildlife as well, such as squirrels, birds, pelicans with ripped pouches—the list goes on. On one May day this year, 33 animals were admitted, 68 in the hospital, 165 in the nursery, and a whopping 649 were being cared for. They are an exemplar in their field!

(Karen E. Lange, “The Heart of Healing,” All Animals, September/October 2017, p.18-23)

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