"Chalimony": A New Solution for Special Needs Children

Today, divorce law largely ignores the economic problems faced by the divorced parent of a special needs child. We need a new post-divorce remedy, which I am calling "chalimony."
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Raising any child requires devotion, flexibility and sacrifice. When the child you're raising has a serious disability or chronic illness, add exceptional levels of anxiety, chaos and unpredictability. These extraordinary care requirements mean that many parents cannot combine caring for their child with meeting the demands of a job. Parents of a child with autism, on average, have lifetime earnings of nearly a million dollars less than other parents. If the parents are married or living together, they earn less than other parents, but they share their economic resources. Stress undermines many of these relationships, however. The rate of divorce for parents of young children with ADHD, for example, is almost twice as high as for other parents of young children.

Today, divorce law largely ignores the economic problems faced by the divorced parent of a special needs child. We need a new post-divorce remedy, which I am calling "chalimony." It would be available to the parent with whom the disabled or chronically ill child lives most of the time if that caregiver is unable to be employed full-time because of the child's special needs. The child's other parent could avoid paying chalimony if he or she were meeting enough of the child's needs to permit the primary parent to work full-time.

Child support under current law does not do what chalimony would. It is designed as a substitute for the money that would have been spent on the child by typical parents making average expenditures in a shared household. The formulas used throughout the country fail to take into account the unusual employment challenges faced by parents raising a special needs child. Alimony is also not an adequate substitute because it is based on the needs of the parent, not on the predictable financial losses the parent experiences because of the child's unusual care needs.

Chalimony will make life better for a special needs child. The greater economic security enjoyed by the child's caregiving parent may afford him or her the time and energy to look beyond the child's immediate medical and therapeutic needs. With a few hours a week of leisure time away from work, the parent would have time and energy for play, community activities and even recreational opportunities.

Paying parents, mostly fathers, will complain that chalimony is unfair, since they're already paying child support and a few are already paying alimony. The complaint is unjustified. The child's caretaking parent is making a far greater financial sacrifice, and it will last throughout that parent's working life. Also, any alternative to parental care will cost the paying parent much more -- imagine the cost of putting a child into an institution, for example, or paying for round-the-clock care by appropriate specialists in one's home.

Caregiving parents, usually mothers, do have a legitimate complaint: chalimony could reinforce the gendered parenting norms that led them to accept the primary parenting role in the first place and led fathers to make employment their higher priority. As proposed, however, chalimony provides a new financial incentive for parents to change their gendered parenting practices, since any parent who is doing enough care to allow the other to be employed isn't obligated to pay.

The law's silence on issues affecting families with disabled and chronically ill children goes far beyond the economic issues affecting divorced parents. Divorcing parents and family courts have little guidance on custody and visitation problems for special needs children, for example. Nor has there been much thought given to whether these cases are better solved through negotiation or through litigation. Employment law, unemployment benefits law and public benefits law also do little to address the needs of families with special needs children. Chalimony, therefore, is only the beginning of a much longer series of conversations.

Chalimony is discussed at greater length in my recent article, Chalimony: Seeking Equity Between Parents Of Children With Disabilities And Chronic Illnesses, which appeared in the New York University Review of Law and Social Change this year.

Cross-posted from New Deal 2.0.

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