Under California law, if a child is “incapacitated from earning a living” and the child is also “without sufficient means” the father and the mother must provide support. Specifically, the statute found in Family Code section 3910 states both 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.”
So often this statute is misunderstood and a parent agrees to support without considering the ramifications. There are several factors you should consider when dealing with adult child support. First, notice that there is no timeline. Adult child support can last the whole life of the child. Second, consider whether your child is truly incapacitated from earning a living. Obviously, if your child is disabled, you should be paying for his support if you can. But, if your child has a disorder rather than a disability, consider whether the child may eventually be self-supporting with the right support system around him or her. Of course, as a parent you will help when they need it, but you don’t necessarily want that to be by court order. Moreover, you may want to pay the child directly rather than to the other parent. You may also want more flexibility on how to provide support rather than through a court order. Court orders do not always conceive of every type of support you will be providing your child.
If you are the one seeking support, make sure that you have an experienced Orange County Family law attorney who understands adult child support laws. You have a heavy burden and if it is not done correctly you will not succeed.
A recent case sheds light on the rule for adult child support. The case is called Marriage of Cecilia and David W and it sets forth a two-prong test for when adult child support is appropriate and when it should not be ordered.
Robert, an adult, was diagnosed by his psychologist and suffered from Tourette's syndrome and attention deficit hyperactivity disorder (ADHD). Robert's medical and psychological issues affected "his daily life, resulting in a 'constant struggle' without external support, schedules, and feedback to help him self-regulate emotion and to 'talk him down from high levels of anxiety and panic attacks that significantly get in the way of performing. " Robert also needed accommodations, including intervention by Disabled Student Services, less distracting test settings, extra time for tasks, and tutors. He was also admitted to urgent care and the emergency room twice because panic attacks caused tachycardia on one occasion and cardiac arrest on the other.
In spite of his disorders and struggles, Robert's psychologist believed Robert was capable of full-time work in a "low demand or low stress environment.” Robert was also enrolled at the University of California, San Diego (UCSD), living with roommates, and driving himself. And, the psychologist believed Robert was intellectually capable of full-time work. Robert could write a resume, complete a job application, and sit for an employment interview. The psychologist even counseled Robert on his career goals and developed job seeking skills with him.
Going against the psychologist’s opinion, the trial court stated Robert's employment opportunities were speculative. It was the court’s opinion that it was going to be "very hard" for Robert to find a job. And, even if Robert found a job, he would "undoubtedly require ADA accommodations." The trial court ordered adult child support, concluding Robert was disabled and incapacitated without "sufficient means."
The Court of Appeal, however, reversed, explaining the two-prong test in FC 3910: (a) incapacity-from earning a living and (b) insufficient means for self-support.
The first prong requires a showing that the adult child is unable to be self-supporting or to find work because of his disability. The Court said that "an adult child is only incapacitated from earning a living within the meaning of section 3910 if he or she 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. " The required showing is not that Robert was disabled or that Robert would have difficulties in the workplace, which the trial court relied upon for its order. "Rather, the inquiry should have been whether Robert was (1) unable to be 'self-supporting,' due to the purported disability, or (2) unable to "find work" due to factors outside his control." The Court said there Robert's conditions are disorders, not disabilities. There is a critical difference.
For the second prong, the Court, quoting from another case called Marriage of Drake, stated that "the question of “sufficient means” is resolved in terms of the likelihood a child will become a public charge." It is the legislative intent "'to protect the public from the burden of supporting a person who has a parent ... able to support him or her."'21 So, the question under FC 391 O's second prong is whether the adult child needs support in order to avoid relying on public assistance. The trial court incorrectly reasoned that Robert lacked sufficient means because his current support relied upon college attendance--Robert was receiving financial aid and loans from UCSD. The--trial court also reasoned-minimum wage work would-not allow Robert to have the same standard of living as his parents. Both bases were improper. The support from college attendance and the parent's standard of living were irrelevant. A parent's standard of living is only relevant for calculating adult support, not for the question of whether to award support.
What does this mean for you if you are paying support and have an adult child with a disorder? If your child does not have a disability, but does have a disorder that affects his daily life, you should not necessarily agree to adult child support. A court should not rubber-stamp an adult child support order.
If you have a child that you believe will need adult child support, make sure you have an experienced attorney that knows the adult child support laws and knows how to implement the right strategy.
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