November 2013 - Simplifying Adult Child Support
by Dallas Simkins
Adult child support is an area of the law to which the Family Code does not provide much attention. If you ask any family law attorney whether they have handled an adult child support case, the likely answer is no. You may even find judicial officers that have not encountered an adult child support case in their courtrooms. Nevertheless, it appears that these cases are becoming more common.
Many misconceptions exist as to how to approach an adult child-support case. Children over the age of eighteen are adults. Thus, support rights inherent to adults can apply to an adult child-support context. Furthermore, there may be issues of the adult child’s earning capacity. Also, the adult child may receive the benefit of government aid, giving rise to many more issues in handling such a case. Finally, if an adult child is incapacitated, there is a potential probate matter if a conservatorship over the adult child is sought.
A basic understanding of adult child support can broaden the scope of your practice. You may currently have a case involving minor children with incapacities that will carry over into adulthood. Or, you may have been approached by a potential client asking about the topic. This article embodies a default approach that applies to every adult child support case regardless of the nuances or intricacies encountered.
California requires that the parents of adult children with incapacities support those children if possible. Family Code section 3910 states, “The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age, who is incapacitated from earning a living and without sufficient means.” Cal. Fam. Code § 3910 (West 2013) (emphasis added). Note that an action to enforce this obligation may be initiated by either the adult child or parent. Other than this code section, the legislature has not provided any clarity on how to proceed with such a case. Nevertheless, the judiciary has clarified many of the issues surrounding adult child support. Specifically, the definitions of “incapacitated from earning a living” and “without sufficient means” have been addressed.
Incapacitated From Earning a Living
A child is incapacitated from earning a living if the child demonstrates “an inability to be self-supporting because of a mental or physical disability or proof of inability to find work because of factors beyond the child’s control.” Jones v. Jones, 179 Cal. App. 3d 1011, 1015 (1986). Courts have been liberal in meeting this standard when dealing with the mental health of adult children and found the incapacity in the following cases to be sufficient. In Chun v. Chun, a father was ordered to support an “emotionally disabled” adult child with a twelve-year-old maturity level. 190 Cal. App. 3d 589, 592 (1987). In re Marriage of Drake dealt with a parent who was ordered to support an adult child with chronic paranoid schizophrenia. 53 Cal. App. 4th 1139, 1154 (1997). Farber v. Olken involved an adult child who was mentally ill. 40 Cal. 2d 503 (1953).
In order to demonstrate that an adult child has an incapacity sufficient for adult child support, an independent medical exam (IME) is required. In fact, for every adult child support case, an IME should be considered, even if the parties stipulate to the fact that the adult child is incapacitated. An IME will set a benchmark for the adult child, which will allow medical professionals to measure the extent of the adult child’s incapacity and the likelihood of the adult child developing a marketable skill set.
Without Sufficient Means
“[T]he question of ‘sufficient means’ should be resolved in terms of the likelihood a child will become a public charge.” In re Marriage of Drake, 53 Cal. App. 4th at 1154. At its core, Family Code section 3910 embodies the principle that society should not bear the burden of caring for incapacitated adults who have parents with the means to do so. The “without sufficient means” inquiry concerns the issue of whether the adult child will end up requiring governmental benefits in the future.
It is also important to determine whether an adult child is already receiving such benefits. In such a case, care should be taken to avoid the loss of such benefits through the use of a special needs trust or similar instrument. Nevertheless, some may argue that a proper adult child support order should eliminate any need for government benefits. However, certain benefits are frequently crucial to the health of the adult child and may be required as part of a medical regimen. For example, an adult child, who has an established course of treatment from a doctor that the adult child visited through the Social Security Administration, may need to remain on that course in order to avoid interruptions and complications that a change in medical provider would likely cause.
Also, the process to qualify for such benefits is fairly rigorous. A strong argument can be made that if an adult child has already qualified for government benefits, that adult child will likely qualify for adult child support.
Calculating Adult Child Support
Aside from determining whether an adult child is (1) incapacitated from earning a living, and (2) without sufficient means, the looming question remains of how adult child support is to be calculated. Pursuant to Drake, this area of the law is very definitive. Drake contains several key holdings that are universal to most adult child support cases. With these guiding principles, an amount can be calculated and ordered.
1. The state legislature intended the child support guidelines to apply to any child, regardless of age, who qualifies for support. Drake, 53 Cal. App. 4th at 1155. As such, notwithstanding a reason to deviate from the guideline formula, adult child support is calculated the same way it is in a child support setting involving minor children.
2. “[W]hen any assumption operating through the guideline formula produces an ‘unjust or inappropriate’ result ‘due to special circumstances in the particular case,’ Family Code § 4057 ‘effectively vests trial courts with considerable discretion to approach unique cases on an ad hoc basis.’” Id. at 1157. In exceptional cases, grounds exist to rebut the presumptively correct guideline amount found in Family Code § 4055. Drake is clear in that adult child support cases are subject to a deviation from the guideline amount. Careful attention must be directed to Family Code § 4057(5)(C) when dealing with an adult child. Special medical needs may be grounds for an upward deviation.
3. “The time-sharing adjustment is based on the parents’ respective periods of primary physical ‘responsibility’ for the children rather than physical ‘custody.’” Id. at 1160. Instead of calculating parenting time according to a visitation/custodial schedule, adult children are usually incapacitated such that one of the parents, or a third party, is physically responsible for the adult child. Therefore, timeshare is a simple calculation in the adult child support setting. Be aware that an adult child cannot be subject to a custody schedule because they are no longer minors. If a parent desires to alter the timeshare with an adult child, that parent must make arrangements to be more physically responsible for the adult child, not file for a custody or visitation modification.
4. When a disabled adult child has independent income or assets, the trial court has the discretion to reduce the formula-calculated amount of child support. Id. at 1158. It is not clear whether this aspect of Drake requires the court to reduce support on a dollar-for-dollar basis, or whether the court has total discretion to determine how independent income or assets reduce the ordered amount.
5. “In implementing the guidelines, the courts should adhere to the principle that ‘[e]ach parent should pay for the support of the children according to his or her ability,’ without distinguishing between minor children and disabled adult children.” Id. at 1159-60 (quoting Cal. Fam. Code § 4053). This is due to the longstanding intent of the legislature that, “children [should] share in the standard of living of both of their parents.” Id. at 1158. As with any child support case, the trial court must make a child support guideline finding on the record, pursuant to Family Code § 4056, no matter how complicated an adult child support case is. This requires disclosure of all necessary financial information to accurately compute a support amount.
On the surface, adult child support cases are relatively simple. They proceed just like a regular child support case even though such cases inherently involve individuals with physical and mental incapacities. Adult child support cases usually necessitate the use of medical and earning capacity experts, and can be highly contentious. Extra efforts should be made to posture these cases such that an adult child receives the assistance he or she requires. As lawyers and advocates of those involved in these situations, we are in the unique position to educate and assist in resolving these issues.
Dallas Simkins is an associate at Dinnebier & Demmerle APC. He can be reached at firstname.lastname@example.org.