A physically or mentally disabled child whose disability began prior to reaching the age of majority can bring a law suit for support against his parents at any time, because his parents remain responsible for support throughout their lives so long as the child’s disability remains.
Here are two prominent cases in which child support was awarded to an adult with a physical or mental disability. One example shows when a child would receive support and the other shows where a child would not unless the adult child brought an independent action. This will hopefully help you understand this confusing area of law.
In the case of Hastings v. Hastings, the divorce decree ordered the father to pay child support until the disabled son reached the age of 21. When the disabled son was 50 years old, he brought a law suit against his father for support. The trial judge dismissed his case, saying he had waited too long to bring the suit. However, the appeals court overruled the trial judge, saying that the son had the right to bring the lawsuit at any time because his parents owed a duty of support to him.
In another case, the case of Phillips v. Phillips, decided in 2012, the final judgment of divorce didn’t mention that the child had physical or other limitations that might prevent him from becoming independent when he reached the age of majority. The Former Wife received exclusive use of the marital home until the child reached majority.
The Former Husband was ordered to pay child support according to the guidelines, as well as ½ of the mortgage for the home. Because the Final Judgment didn’t provide for support after the child reached the age of majority, the Former Husband’s duty to pay the Former Wife child support and ½ the mortgage stopped when the child reached the age of majority. If the adult child wanted support, he would have to bring a lawsuit against both his parents, and he would have to show that he had a physical or mental disability that began before he reached the age of majority, as well as showing that he was dependent upon his parents for support.
In any case, the parties can agree that the child is disabled. In that case, the court has jurisdiction to grant a parent’s post-judgment request for continued support after the child reaches the age of majority. An adult child who is eligible for support because of a mental or physical disability is eligible for support even if that child gets married. Marriage does not emancipate a child who is dependent because of a mental or physical disability.
If you have a child who you believe is disabled, contact an experienced family law attorney to discuss what you need to do to protect your child.