THE DUTY TO SUPPORT ADULT DISABLED CHILDREN
© 1997 National Legal Research Group, Inc.
Pursuant to the common law, parents must support their children only during their minority. Because of the importance of education, however, all states have adopted statutes that require parents to support their children until they are 18 or 19 years old or have graduated from high school, whichever is earlier. Laura W. Morgan, Child Support Guidelines: Interpretation and Application 4.05[d] at 4-28 (Supp. 1997). Moreover, 19 states have adopted the rule, either by statute or case law, that parents have a duty to provide postsecondary school support.
The law also provides one other major exception to the rule that parents' duty to support their children ends at the children's majority: when the child is disabled. We will examine the duty of parents to support their adult disabled children. This article will not examine cases that discuss the issue of whether a parent is liable for the payment of hospital bills of an adult child.
II. THE DUTY IN GENERAL
As stated above, the common law imposes on parents the obligation to support their children until the children are of the age of majority. The law presumes that once a child has reached the age of majority the child is then capable of self-support. Seegenerally 59 Am. Jur. 2d Parent and Child 89 (1987); 67A C.J.S. Parent and Child 62 (1978). The situation may arise, however, where the child is disabled, mentally or physically, and therefore unable to support himself/herself upon reaching the age of majority. Most states have adopted the rule that parents have a common-law duty to support their adult disabled children. See generally M.C. Dransfield, Annotation, Parent's Obligation to Support Adult Child, 1 A.L.R.2d 910 (1948); Comment, The Parental Duty to Support Disabled Adult Children, 9 DePaul L. Rev. 245 (1960); e.g., Genda v. Superior Court of Pima County, 103 Ariz. 240, 439 P.2d 811 (1968); Petty v. Petty, 252 Ark. 1032, 482 S.W.2d 119 (1972); Bryant v. Swoap, 48 Cal. App. 3d 431, 121 Cal. Rptr. 867 (1975); Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983); Nelson v. Nelson, 548 A.2d 109 (D.C. 1988); Perla v. Perla, 58 So. 2d 689 (Fla. Dist. Ct. App. 1952); State ex rel. Cromwell v. Panzeri, 76 Idaho 211, 280 P.2d 1064 (1955); Strom v. Strom, 13 Ill. App. 2d 354, 142 N.E.2d 172 (1957); State ex rel. Murray v. Riggens' Estate, 328 N.E.2d 248 (Ind. 1975); Pocialik v. Federal Cement Title Co., 97 N.E.2d 360 (Ind. Ct. App. 1951); Hansen v. Hansen, 514 N.W.2d 109 (Iowa Ct. App. 1994); In re Glass's Estate, 175 Kan. 246, 262 P.2d 934 (1953); Laterra ex rel. Commercial Bank v. Treaster, 17 Kan. App. 2d 714, 844 P.2d 724 (1992); Clark v. Graves, 282 S.W.2d 146 (Ky. 1955); Viccaro v. Milunsky, 406 Mass. 777, 551 N.E.2d 8 (1990); Feinberg v. Diamant, 378 Mass. 131, 389 N.E.2d 998 (1979); McCarthy v. McCarthy, 301 Minn. 270, 222 N.W.2d 331 (1974); Fower v. Estate of Fower, 448 S.W.2d 585 (Mo. 1970); In re Marriage of Wolfe, 202 Mont. 454, 659 P.2d 259 (App. Div. 1983); Kruvant v. Kruvant, 100 N.J. Super. 107, 241 A.2d 259 (App. Div. 1968); Psomas v. Psomas, 99 N.M. 606, 661 P.2d 884 (1982); Cohn v. Cohn, 123 N.M. 85, 934 P.2d 279 (Ct. App. 1996); Kahn v. Kahn, 271 A.D.2d 788, 65 N.Y.S.2d 272 (1946); Warren v. Long, 264 N.C. 137, 141 S.E.2d 9 (1965); Castle v. Castle, 15 Ohio St. 3d 279, 473 N.E.2d 803 (1984); Commonwealth ex rel. Welsh v. Welsh, 222 Pa. Super. 585, 296 A.2d 891 (1972); Ervin v. Ervin, 458 A.2d 342 (R.I. 1983); Jameson v. Jameson, 306 N.W.2d 240 (S.D. 1981); Sayne v. Sayne, 39 Tenn. App. 422, 284 S.W.2d 309 (1956); Red v. Red, 552 S.W.2d 90 (Tex. 1977); Kiesel v. Kiesel, 619 P.2d 1374 (Utah 1980); Beaudry v. Beaudry, 132 Vt. 53, 312 A.2d 922 (1973); Van Tinker v. Van Tinker, 38 Wash. 2d 390, 229 P.2d 333 (1951); Casdorph v. Casdorph, 194 W. Va. 490, 460 S.E.2d 736 (1995).
Some states have held that parents do not have any common-law duty to support their adult disabled children. Rather, such a duty may be imposed only by statute. Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735 (1951); Crane v. Crane, 225 Ga. 605, 170 S.E.2d 392 (1969); Genther v. Genther, 180 A.D.2d 662, 579 N.Y.S.2d 707 (1992); Meyers v. Meyers, 222 Neb. 370, 383 N.W.2d 784 (1986); Smith v. Smith, 433 Mich. 606, 447 N.W.2d 715 (1989) (Age of Majority Act impliedly repealed section providing for duty, and hence there is no duty); Bandiet v. Larsen, 442 N.W.2d 455 (S.D. 1989); Schmitz v. Schmitz, 70 Wis. 2d 882, 236 N.W.2d 657 (1975). Other states have held that a statute requiring parents to support their disabled children is merely a codification of the common law. E.g., Hansen v. Hansen, 514 N.W.2d 109 (Iowa Ct. App. 1994).
The chart which follows this article lists all states, noting whether the duty to support an adult disabled child is pursuant to the common law or to statute, or whether the state does not recognize the duty at all.
Where there is a statute governing parents' duty to support adult disabled children, then the action for support must be brought within the terms of the statute. Provinzano v. Provinzano, 116 Ariz. 571, 570 P.2d 513 (1977); Woolams v. Woolams, 115 Cal. App. 2d 1, 251 P.2d 392 (1952); Verna v. Verna, 288 Pa. Super. 511, 432 A.2d 630 (1981); Haxton v. Haxton, 299 Or. 616, 705 P.2d 721 (1985). Indeed, there is authority that when a statute delineates parents' duty to support an adult disabled child, then there is no duty to support an adult disabled child outside the statutory framework. Napa State Hospital v. Flaherty, 134 Cal. 315, 66 P. 322 (1901); Moss v. Moss, 163 Wash. 444, 1 P.2d 916 (1931).
III. WHAT CONSTITUTES "DISABILITY" OR "DEPENDENCY"
Most often, courts define "disability" in economic terms, i.e., the inability of the adult disabled child to adequately care for himself/herself by earning a living by reason of mental or physical infirmity. For example, in Presley v. Presley, 65 Md. App. 265, 500 A.2d 322 (1985), the parties' daughter was mildly retarded. In an action brought by the former wife against the former husband, the former wife sought an order continuing and increasing the support obligation. The daughter was capable of gainful employment and was in fact employed by the National Institutes of Health, full-time, earning $14,200 per year. Because of the daughter's expenses, however, she had a significant shortfall. Moreover, the former wife provided the daughter's medical expenses, bought her a car, and generally made up part of the monthly deficit. The court held that because the daughter, due to her mental infirmity, was unable to fully support herself as an adult, she was disabled within the meaning of the statute and thus entitled to further support.
The child need not be penniless, nor may he be profligate. The duty of support arises when the child has insufficient resources and, because of mental or physical infirmity, insufficient income capacity to enable him to meet his reasonable living expenses.
500 A.2d at 328.
Pennsylvania has also focused on the economic aspect of disability. In Hanson v. Hanson, 425 Pa. Super. 508, 625 A.2d 1212 (1993), the court stated that to determine whether an order of support is appropriate, the test is whether the child is physically and mentally able to engage in profitable employment and whether employment is available to that child at a supporting wage. Thus, the adult child who, because of her handicaps, only earned $2,850 as a laundry worker was disabled and entitled to support pursuant to the guidelines. See also Sudduth v. Scott, 394 So. 2d 536 (Fla. Dist. Ct. App. 1981) (mother had duty to support adult disabled son who was blind and retarded and incapable of holding a job); Commonwealth ex rel. Cann v. Cann, 274 Pa. Super. 274, 418 A.2d 403 (1980) (adult child who suffered learning disability and was unable to earn supporting wage because of mental capacity, even though she worked 40 hours per week at a cleaning job and babysitting, was entitled to continued support); Commonwealth ex rel. Magaziner v. Magaziner, ___ Pa. Super. ___, 419 A.2d 149 (1980) (parents' duty to support child did not end at majority where the child required psychiatric care and was unemployable).
Because the focus is economic, the trial court must find a causal relationship between the adult child's inability to support himself/herself and the adult child's physical or mental disability. Without a finding as to causation, the trial court may well be reversed. For example, in Ulery v. Ulery, 86 Ohio App. 3d 290, 620 N.E.2d 933 (1993), the parties' child Donald had a mild brain dysfunction and education and behavioral problems and was in special education all through school. Citing Castle v. Castle, 15 Ohio St. 3d 279, 473 N.E.2d 803 (1984), the court held that because the trial court did not find that Donald was unable to support himself due to the disability, the order for support could not stand.
This same point was made in State ex rel. Albert v. Sauer, 869 S.W.2d 853 (Mo. Ct. App. 1994). In that case, the testimony established that Wayne had suffered brain damage at the age of 2; at age 19, he had the mind of a 14-year-old; he had a bad memory and constantly needed to be reminded of chores; he could not hold onto his wages, and would spend all his money on his girlfriend. The court concluded:
The aggregate testimony on Wayne's mental condition, including brain damage, learning difficulties, bad memory, fails to demonstrate the level of incapacity contemplated by 452.340.4. Even if Wayne's mental condition were sufficient to constitute mental incapacity, no evidence connected that mental condition with Wayne's inability to support himself. Evidence indicated that Wayne was not supporting himself, but no evidence indicated that he lacked the ability to support himself due to mental incapacity.
Id. at 855; accord Nelson v. Nelson, 379 A.2d 713 (D.C. 1977) (father had no duty to support son where son, although blind in one eye, was able to care for himself by driving own automobile and was able to earn a living); Young v. Young, 413 S.W.2d 887 (Ky. 1967) (court could not order support for adult child who was not so unsound in mind or body as to be incapable of caring for himself); Speight v. Speight, 933 S.W.2d 879 (Mo. Ct. App. 1996) (where only testimony was that there was "something emotionally wrong" with the parties' child and that he was "full of anger," the evidence was insufficient to demonstrate a mental incapacity).
Some other courts have refused to hold that incapacity is limited to the economic circumstances of the child. In Free v. Free, 581 N.E.2d 996 (Ind. Ct. App. 1991), the court held that "we did not limit the determination of incapacity to only those instances in which a child is unable to provide for himself. Although incapacity includes the inability of the child to provide for himself, it is not limited thereby." Id. at 998. Presumably, there may arise a situation where a child can live independently yet still be "incapacitated" and entitled to further support.
While most cases concerning the lack of causal connection have involved the situation where the mental or physical incapacity is well established but the connection to the inability to earn a living is lacking, the situation may arise where the inability to earn a living is well established, but the connection to mental or physical incapacity is lacking. For example, in Rosche v. Rosche, 163 Ill. App. 3d 308, 515 N.E.2d 1001 (1987), the custodial father appealed the trial court's finding that the adult child Charles was not disabled such that he was incapable of supporting himself. The father pointed to the testimony of a physician, who stated that Charles was permanently disabled and unemployable, and to the fact that Charles had flunked out of college. Charles's own testimony, however, contradicted his incapacity.
Charles . . . stated that he had not tried to find work, instead spending his time "goofing around with his friends." He testified that he would not have flunked out of college had he applied himself.
515 N.E.2d at 1005. Thus, the inability to work must arise from the disability, which in turn must be established by competent evidence. As stated in Harris v. Rattini, 855 S.W.2d 410, 412 (Mo. Ct. App. 1993), a case in which an adult child was a talented roofer but turned down a number of jobs due to his "mental difficulties," "[d]isinclination to work is not incapacity." Id. at 412; accordMason v. Mason, 873 S.W.2d 631 (Mo. Ct. App. 1994) (20-year-old child's lack of commitment toward college or employment does not signal that child has special needs requiring extraordinary support).
IV. THE EXTENT OF SUPPORT REQUIRED
There is a split among the states as to whether the proper measure of support for an adult disabled child is determined by the state's child support guidelines or by the needs of the child as balanced by the parents' ability to provide support.
In DeMo v. DeMo, 679 So. 2d 265 (Ala. Civ. App. 1996), the court held that the words "child" and "children" in the Alabama Child Support Guidelines refer to dependent children, including both minor children and adult children who continue to be disabled beyond their majority. Thus, the guidelines are applicable in the establishment or modification of child support for an adult dependent child. Accord Kimbrell v. Neldon, 47 Ark. App. 56, 884 S.W.2d 268 (1994); O'Connor v. O'Connor, 71 Ohio App. 3d 541, 594 N.E.2d 1081 (1991); Crawford v. Crawford, 429 Pa. Super. 540, 633 A.2d 155 (1993); Peterson v. Smith, 307 S.C. 418, 415 S.E.2d 431 (Ct. App. 1992); Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (it was appropriate for court to use child support guidelines and to deviate upward for extraordinary medical expenses).
On the other hand, in Hansen v. Hansen, 514 N.W.2d 109 (Iowa Ct. App. 1994), the Iowa Court of Appeals, relying on a prior case, held that the Iowa Child Support Guidelines were not meant to apply to adult disabled children because their needs are so out of the ordinary and so different from other children. Accord Streb v. Streb, 771 P.2d 798 (Alaska 1989) (child support guidelines are inapplicable to adult disabled child).
When child support is determined by calculating a presumptive award under the state's child support guidelines, some states have held that it is error to deduct from the presumptive award Social Security disability benefits the adult child may be receiving. Schwartz v. Schwartz, 23 Fam. L.Q. (BNA) 1555 (Fla. Dist. Ct. App. Sept. 24, 1997); Hall v. Hall, 677 So. 2d 91 (Fla. Dist. Ct. App. 1996). Some cases, however, have held that if an adult disabled child receives Social Security disability benefits and is covered by a parent's health insurance policy further support by the noncustodial parent may be unnecessary. Norden v. Norden, 173 Mich. App. 826, 434 N.W.2d 256 (1988); Hammett v. Woods, 602 So. 2d 825 (Miss. 1992).
Just as in other guidelines cases, the court may deviate from the presumptive award when the circumstances indicate that an award pursuant to the guidelines would be unjust or inappropriate. One common deviation factor applied in the case of an adult disabled child is the ability of the child to provide for himself/herself. Sanders v. Sanders, 902 P.2d 310 (Alaska 1995).
V. WHEN MUST THE DISABILITY ARISE
Most states have held that in order for a parent to be liable for an adult child's support due to disability, the disability itself must have arisen prior to the child's majority. In other words, once a child reaches majority and becomes emancipated, a subsequent disability cannot revive the duty of support.
This was stated most recently in Filippone v. Lee (Filippone), 23 Fam. L.Q. (BNA) 1547 (N.J. Super. Ct. App. Div. Sept. 23, 1997). In that case, the parties' son was emancipated when he flunked out of college and failed to return to college in the fall of 1995. One year later, the son incurred a serious disability. Relying on the New Jersey case of Kruvant v. Kruvant, 100 N.J. Super. 107, 241 A.2d 259 (App. Div. 1968), the court held that an adult child's disability after emancipation cannot revive a parent's duty of support. Rather, the disability must have arisen prior to emancipation. Most other cases agree with this result. Accord Elliot v. Bretherick, 555 So. 2d 1109 (Ala. Civ. App. 1989) (relying on Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735 (1951), held it was error for court to hold that father had continuing obligation to support adult son disabled with leukemia where there was insufficient evidence to show that son's disability existed at the time he reached majority); Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985) (once the legal duty of a parent to support a child ceases due to the child's majority, it cannot be reimposed); Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983); Keenan v. Keenan, 440 So. 2d 642 (Fla. 1983); Lasky v. Golden, 265 So. 2d 70 (Fla. Dist. Ct. App. 1972) (it was improper for trial court to exclude proffered evidence of daughter's emancipation prior to her adjudication of incompetency, for emancipation would obviate duty of support); State ex rel. Cromwell v. Panzeri, 76 Idaho 211, 280 P.2d 1064 (1955); State ex rel. Murray v. Estate of Riggens, 164 Ind. App. 314, 328 N.E.2d 248 (1975); Counts v. Hospitality Employees, 518 N.W.2d 358 (Iowa 1994) (parents had no duty to support son who became disabled when, at age 19, he crashed his car after a night of drinking); Breuer v. Dowden, 207 Ky. 12, 268 S.W. 541 (1925); Treasurer v. Sermini, 229 Mass. 248, 118 N.E. 331 (1918); Clinton v. Laning, 61 Mich. 355, 28 N.W. 125 (1886); Citizens' State Bank v. Shanklin, 174 Mo. App. 639, 161 S.W. 341 (1913); Cohn v. Cohn, 123 N.M. 85, 934 P.2d 279 (Ct. App. 1996); Sacred Heart Medical Center v. Williams, 637 F. Supp. 184 (E.D. Pa. 1986) (applying Pennsylvania law); Crawford v. Crawford, 429 Pa. Super. 540, 633 A.2d 155 (1993); Ewing v. Holt, 835 S.W.2d 274 (Tex. App. 1992) (court only has jurisdiction to modify its prior orders once child is past majority); Moss v. Moss, 163 Wash. 44, 1 P.2d 916 (1931).
There are some states, however, that adhere to the rule that when the adult disabled child becomes incapable of self-support is irrelevant. For example, in Sininger v. Sininger, 300 Md. 604, 478 A.2d 1354 (1984), the court held that a parent who has the means to do so has the duty to support an incapacitated adult child whose disability commences after the age of majority. The court reasoned that the legislative intent of the statute criminalizing the failure of a parent to support a destitute adult child makes no distinction based on emancipation. Thus, any distinction based on the time of the onset of the illness or incapacity is irrelevant. Accord Martin v. Martin, 623 So. 2d 1167 (Ala. Civ. App. 1993) (trial court can order support for adult disabled child at time of divorce no matter how old adult disabled child is, so long as at the time of majority the child was incapable of support); Woolams v. Woolams, 115 Cal. App. 2d 1, 251 P.2d 392 (1952) (basing decision on reference to statute that requires parents and other relatives to support indigents, court held that parents had duty to support child who became disabled after majority); Towell v. Towell, 640 So. 2d 810 (La. Ct. App. 1994) (not requiring that disability be premajority); Commonwealth ex rel. O'Malley v. O'Malley, 105 Pa. Super. 232, 161 A. 883 (1932) (because statute that required parents to support disabled child made no reference to the time of the occurrence of the disability, parents must support child who became disabled after reaching majority).
In Casdorph v. Casdorph, 194 W. Va. 490, 460 S.E.2d 736 (1995), the court took the view that the adult disabled child, although becoming disabled at age 19 as the result of a car accident, had never actually been emancipated, and therefore the father could be held to her support. In that case, the daughter had never married and continued to live at home after her parents' divorce and until her accident. During that time, she remained dependent on her mother for support. The court held that the daughter had never been emancipated, and so the father's duty to support was, in fact, "continuing." See also Kinder v. Schlagel, 185 W. Va. 56, 404 S.E.2d 545 (1991) (court may order support for adult disabled child after child has reached the age of majority).
VI. PRACTICE AND PROCEDURE
A. When Must the Action for Support Be Initiated
We have already noted that, in most states, the disability must have arisen before the child reaches majority in order for the duty of support to be imposed. Assuming that this is the case, may a support action be maintained after the child reaches majority? Most states have held that the action to establish the continuing duty of support past age 18 must be maintained before the child reaches the age of majority. Mendoza v. Mendoza, 117 Ariz. 603, 870 P.2d 421 (Ct. App. 1994) (award must be made prior to majority); Hadden v. Hadden, 320 Ark. 480, 897 S.W.2d 568 (1995) (where child reached majority four years before parties separated, court could not order father in divorce proceeding to support adult disabled child); Baldi v. Baldi, 323 So. 2d 592 (Fla. Dist. Ct. App. 1975) (whether a minor is entitled to support past the age of 18 is a question to be determined by the court at the time of the child reaching the age of majority); Robertson v. Robertson, 312 So. 2d 246 (Fla. Dist. Ct. App. 1974) (court order of support for child who had already reached 18 years of age was improper); Couser v. Stanton, 722 S.E.2d 250 (Tex. App. 1986) (court did not have jurisdiction to enter order modifying prior support so as to continue payments after child reached 18 where the order was not entered until after the child's eighteenth birthday). A similar requirement has been held for college support: Even though the duty to support lasts beyond majority, the duty must be established prior to majority.
Some courts have held that this rule unfairly penalizes the adult disabled child whose parents do not divorce until after the child has reached majority. Therefore, when the initial support determination does not occur until after the child's majority, and the parents have been supporting the child until that time, then the court may order support to continue at that time. For example, in Whitten v. Whitten, 592 So. 2d 183 (Ala. 1991), the court held that so long as the disability itself arose before majority, that is, when the child was under 18 years of age, then the application for support can be made after majority. Accord Streb v. Streb, 774 P.2d 798 (Alaska 1989) (court may award support for 25-year-old adult disabled child at time of dissolution decree); Baker v. Baker, 488 N.E.2d 361 (Ind. Ct. App. 1986) (when dissolution action occurred when adult disabled child was 22 years old, court could enter order for support since he had never been emancipated to begin with; order was for "continuing" support); Abbott v. Abbott, 673 S.W.2d 723 (Ky. Ct. App. 1983) (court properly ordered support for severely handicapped, wholly dependent son who was over age 18 at time of divorce; wholly dependent child was not emancipated when he turned 18); Racherbaumer v. Racherbaumer, 844 S.W.2d 502 (Mo. Ct. App. 1992) (in marriage dissolution proceeding, court could order support for 22-year-old mentally incapacitated child of marriage).
B. Who May Enforce the Duty
Since the duty to support the adult disabled child is most often made prior to the child's majority, the duty is generally established by the custodial parent. In those states where the duty may be established after the child's majority, the duty may be established by either the custodial parent or the child. E.g., Johnson v. Superior Court, 159 Cal. App. 3d 573, 205 Cal. Rptr. 605 (1984) (action for support of developmentally disabled adult child may be maintained by one parent in individual capacity against other parent).
Once the duty has been established and the child reaches the age of majority, then quite a number of different parties may sue to enforce the obligation, both as to arrears and as to future modification. First, the child may enforce the obligation in his or her own right. In re Marriage of Drake, 53 Cal. App. 4th 1139, 62 Cal. Rptr. 2d 466 (1997); Harper v. Harper, 608 So. 2d 517 (Fla. Dist. Ct. App. 1992); Haxton v. Haxton, 299 Or. 616, 705 P.2d 721 (1985). Second, the physical custodian of the child may sue. Pepper v. Johns Hopkins Hospital, 111 Md. App. 49, 680 A.2d 532 (1996) (parent's duty to support disabled child is a duty that may be enforced in equity). Third, where the child is receiving public benefits, the appropriate state agency may sue to enforce the obligation. E.g., Mazzackelli v. Mazzackelli, 106 Ohio App. 3d 554, 666 N.E.2d 620 (1995) (Commissioner of Social Services). In any case, the child, once the age of majority, is an indispensable party.
C. Burden of Proof
Because the duty to support a child ordinarily terminates when the child reaches the age of majority, it is up to the party asserting that the burden should not terminate to show that the adult child is in such a feeble and dependent condition physically or mentally as to be incapable of supporting himself/herself. Moreover, the burden is generally not just a preponderance of the evidence, but is clear and convincing evidence. E.g., Free v. Free, 581 N.E.2d 996 (Ind. Ct. App. 1991); Speight v. Speight, 933 S.W.2d 879 (Mo. Ct. App. 1996).
The federal government continues apace its plan to reduce federal benefits to the young, aged, and infirm. This year, over 10,000 children were terminated from the SSI program because their disabilities were not deemed serious enough.
Given this climate, the responsibility of parents to their children will take on greater significance, and litigation in this area is bound to increase.
Child Support Category