THE DUTY TO SUPPORT ADULT DISABLED CHILDREN

 

The Basics

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.”

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.”  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.

In re Marriage of Drake dealt with a parent who was ordered to support an adult child with chronic paranoid schizophrenia.

Farber v. Olken involved an adult child who was mentally ill.

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.”

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.

See our resources & links below

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.  Read full article from Orange County Bar

 

Children Are Like Diamonds: Forever.  Only, More Expensive: A Primer on California Family Code section 3910(a), the Most Terrifying, Most Common Sense Law You’ve Never Heard Of, but Should Have  Read Article Alameda Bar Assoc

Wallin & Klarich Family Law 

Song Family Law  

Proper standard for definition of incapacitated? 

See Article on 50 year old attorney with depression


child support guidelines.com

 

 

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