Child support is a frequently litigated issue in family law with an extensive body of law that, on most occasions, provides appropriate guidance for both lawyers and their clients. However, there is a specific subset of support that is much rarer than the issue of child support – support for the adult child. Judges face the same lack of guidance and unpredictability as lawyers and litigants in this area, which makes advising clients on what a trial court judge may or may not do all the more uncertain. So, when can the court order child support to continue into adulthood?
Family Code section 3901(a) states that “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.” The legislature’s use of the language, “whatever age,” illustrates its intent to continue a parent’s obligation past the age of majority in specific circumstances defined in the Family Code.
Failure to Launch or Disabled?
According to Zack Friedman at Forbes.com in his article entitled “Why Are Millennials Still Living with Their Parents?”, many more Millennials are still living at home with their parents longer than both Baby Boomers and Generation X. However, while an adult child may still be living at home in adulthood (perhaps as a result of student loans or rising rent costs) this does not mean that a parent is now legally obligated to pay adult child support for their familial roommate.
However, what if the reason behind your adult child’s lack of ability to become self-supporting is the result of a drug addiction or mental health issues? Are you now obligated to support your adult child? The answer is unclear. This is precisely the grey area where it becomes difficult for lawyers to advise their clients. The following is the general framework as to what a court will consider should you find yourself seeking or opposing a support order for your adult child.
To determine whether the adult child is “incapacitated from earning a living,” the court looks at whether the adult child is unable to be self-supporting due to their purported disability or whether they are unable to find work due to factors outside the adult child’s control. In Marriage of Cecilia & David W. (2015) 241 Cal.App.4th 1277, 1285 (“Cecilia”), the adult child, Robert, suffered from Tourette syndrome, panic attacks, learning disabilities and emotional management issues. Despite these challenges, Robert found some success in high school and college with accommodations, including intervention by disabled student services, extra time for tasks, less distracting test settings, and tutors. The court noted that Robert would likely have difficulty sustaining a job. However, the court found his conditions were disorders, not disabilities and held that he was not considered incapacitated from earning a living, even minimum wage, and hence adult child support was not appropriate.
The second prong of Family Code section 3910 is the question of “sufficient means.” The court in Marriage of Drake (1997) 53 Cal. App. 4th 1139, 1154 observed that a parent’s duty to support an adult child does not arise only when the child would otherwise be homeless. In Drake, the court held that the adult son, David, who suffered from schizophrenia, paranoid type, was incapacitated and without sufficient means. It was undisputed that David could not earn a living due to his condition. Although David was receiving support from a trust, the court found that the funds from the trust would eventually come to an end, leaving David to be a public charge. In that the Legislature’s intent is to protect the public from the burden of supporting a person who has a person able to support him or her, the court ordered that David’s father pay adult child support for David’s care
In Cecilia, the adult son clearly faced hurdles in order to become self-supporting – more so than your average Millennial. However, the evidence presented at trial was still not enough for the court to make a finding of incapacity and order adult child support. On the other hand, the adult child’s schizophrenia, paranoid type in Drake was deemed to be a complete incapacitation. Thus, lawyers must navigate the inconsistencies in the cases when advising clients whose child’s incapacities or disabilities fall somewhere in the middle of the two cases discussed herein.
Uncertainties and Unknowns
What does this mean for you? Depending on the type and severity of the mental illness or health issue that is present, as well as the level it affects the adult child’s ability to support themselves, a court may order adult child support. However, because this area of the law appears to be mostly undefined, there is a risk involved in the success of a case for adult support.
Further, no case specifically addresses the issue of drug addiction and its effect on an adult child’s capacity in this regard. As discussed above, there is likely a high threshold in determining an adult child’s incapacity and whether the adult child can support him or herself with sufficient means, as the ability to maintain a minimum wage job has been deemed to be sufficient to rebut the need for adult child support from a parent.