• Shawna Murray, Attorney

Parents Must Support Disabled Children Throughout Adulthood

You may already know that in California, both parents must financially support their minor children until the child turns 18 years old, unless the child is still in high school and not “self-supporting,” then the support continues until age 19 or when the child completes the 12th grade, whichever occurs first. (California Family Law Code Section 3901). For many child support payors, graduation day is the last time they will provide support payments to the other parent for their child, even though we all know that kids need parental support at age 18, 19, 20, and perhaps longer.

The need for continued support payments after age 18 is greatest when your child is incapacitated. Fortunately, California law provides that a court can order a parent to make support payments for incapacitated adult children. California Family Law Code Section 3910 provides, “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.”

There are two important elements to prove should you need to take your child’s other parent to court to get a support order. The elements are (1) incapacitated from earning a living and (2) without sufficient means.

Understanding “Incapacitated from Earning a Living”

Numerous court cases in California have shaped the meaning of “incapacitated from earning a living” so that we can determine what needs to be proven here. Consider this: Does the adult child have a mental or physical disability that makes them unable to be self-supporting? Or is there proof of the adult child’s inability to find work because of factors beyond the child’s control?

Some examples of mental disability that the Courts have found meeting the incapacity element include an adult child with the mental capacity of a 12-year old; chronic paranoid schizophrenia; autistic disorder, borderline intellectual functioning and though high functioning [with] a history of deficits in social interactions; extreme disturbance with hyperkineticism and infantile symbiotic psychosis; and an adult child who was mentally ill.

Physical disabilities reviewed in court cases include a paraplegic; in a coma; totally blind invalid; and sick and unable to work. Of course, this shortlist does not include the many different types of disabilities a child can have, long-term or short-term, that would make them unable to be self-sufficient.

Courts have not placed importance on the timing of the disability, so whether it developed before or after age 18 is not relevant. However, if a parent questions the diagnosis or if there are other doubts, an independent medical examination of the adult child will be needed. An earnings capacity expert might also be needed to examine the child’s ability to be self-sufficient.

Understanding “Without Sufficient Means”

The meaning of “without sufficient means” has also been shaped by case law. The petitioner requesting the support for the adult child needs to demonstrate that without the parental support, the child would become a “public charge.” Consider: What income and assets does the child have? Would the child end up needing his or her support to come from the government if it were not for the parents? The intent behind this law is to prevent society from having to support the incapacitated adult when there are parents with the ability to support to do it.

The fact that the adult child is receiving social security disability benefits or qualifies for Medicare or Medi-Cal benefits does not automatically relieve the parents from support obligations. After all, that income is still very likely to be sufficient for anyone to be self-supporting. However, the court has the ability to adjust the support payments downwards to reflect the child’s income.

How Much Support Will the Child Get?

The support order should be calculated according to the state’s guideline formula used for determining support of minor children. The time-sharing information used in determining the support payments for minor children also applies, but the court will look at when the parents are physically responsible for their child since you cannot put your adult child on a timeshare schedule like you can with a minor.

The court will also need to take into account the parent’s ability to pay the support. It will also look at the special medical needs and other needs of the child that might require a higher support amount. The parents and the adult child are going to have to make complete financial disclosures, similar to what they would do in the case of a minor’s child support case.

Parent’s Estates are not Immune

If a parent dies while a child support order is in effect, the support order survives to become a charge on the estate of the decedent. The case law says that the support order for an adult child will apply the same as it does for a minor child. Therefore, the adult child can submit a claim in the probate case or to the successor trustee of the parent’s trust.

Also, the court, when making the support order for the adult child may also order the parent to provide a security payment of sorts, for the support payments. This security could also address concerns about the ability of an elderly parent’s estate to meet the support obligation so that the adult children can be provided for if they outlive their parents.


It would be ideal if both parents of incapacitated adult children work out an equitable way to support their child without resorting to a contentious and expensive court battle.

In addition, it would be beneficial if both parents set up special needs trusts to provide for their disabled children without disqualifying them from important “needs-based” benefits, especially health care coverage. A conservatorship may also be needed.

If you would like help preparing a special needs trust or drafting a support order for your children, please contact me at 949-416-3575.

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