How are public benefits decided in divorce?

IHSS

In-Home Supportive Services (IHSS) is a common topic of discussion for parents legally separating in California. As Omana explains, “If both parents are available and eligible to be the child’s IHSS provider, hours may be assigned based on the child’s needs, when the child is in each parent’s home.” The service hours are allocated to the child, not the parents, so benefits are provided in the location where the child resides — even if the child lives in two homes.

IHSS hours are dependent on what each specific county allows, as there are only so many hours allowable and can differ from county to county throughout California. If you, as a parent, are not agreeing with orders that are being made, the fix will not come in family court — it will have to be through the request of an administrative hearing. “It’s going to be a county issue; if orders are provided for one household and not the other but there’s an order that both parents will be exercising custodial rights over the child and therefore need services in both households, parents need to address this issue with an administrative hearing with the county, not in family court.”

Regional Center

Families whose child is eligible for Regional Center benefits will also need to discuss the child’s new living arrangements with their service coordinator. Lanterman Act services are provided to the child as the consumer and can be provided differently in each household that the child lives in.

Generally speaking, based on observation of current practice, Arroyo tells Undivided that Regional Centers typically split the respite between parent households. For example, if the couple had 20 hours a month, they might now have 10 hours per household. There is also the possibility that because each parent now only has the child part-time, they often need less respite and so possibly the family may lose respite hours. Arroyo says that the decision on respite being split between two households is really up to the Regional Center.

Consent to having services is also sometimes an issue — if one parent is withholding consent, even if just for one service, often the Regional Center will simply stop all services, regardless of the custody agreement.

Respite is really the only service that is primarily for the benefit of the parents. All other Regional Center services are for the benefit of the Regional Center consumer, i.e. the child. The only thing likely to change is how and where the services are provided.

Where to get legal help with public benefits

While we spoke with attorneys in the CLA SoCal Family Law Unit, CLA SoCal has a group of attorneys dedicated to the public benefits area of law. For those who live in Orange or Southeast Los Angeles County, you may contact the CLA SoCal hotline at 1-800-834-5001 with any questions. If you are eligible, their team will get back to you with legal advice and/or provide direction.

If you live outside of CLA SoCal’s service area, there are legal aid offices throughout California, and throughout the country, and you may call and ask for a referral to the appropriate legal aid office if needed. Additionally, legal aid organizations like Legal Services of Northern California have put out resources for parents navigating these complexities and summary guides in the past.

For more information, see our full article Navigating Divorce and Co-Parenting Children with Disabilities.