Is My Adult Disabled Child Entitled to Receive Support?

In California, a parent has a right to receive child support for an adult disabled child. Family 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.

Specific cases have defined what it means to be “incapacitated from earning a living” and “without sufficient means.” Incapacitated from earning a living means “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.” (See Marriage of Drake, (2015) 241 Cal.App.4th 934, 940 (citing Jones v. Jones (1986) 179 Cal.App.3d 1011, 1014–1015, 225 Cal.Rptr. 95.) The determination as to whether the child is without sufficient means is resolved by determining the likelihood that the child will become a public charge. (Drake, 241 Cal.App.4th at p. 940.)

How is Adult Child Support Calculated?

Adult child support is determined by the statutory guidelines set forth in Family Code section 4050 et. seq. The primary factors that influence the amount of child support that a parent will have to pay are the amount of time each parent spends with the child(ren) and the income of both parties. There are other factors, such as tax exemptions and deductions, retirement contributions, unearned income and earning capacity, that affect the child support amount. There’s more information in the post The Primary Factors in Child Support.

What if my Adult Disabled Child Doesn’t Live with either Parent?

The obligation to support an adult disabled child runs to the child, not to either parent. If the child has a conservator, legal guardian or other legal representative, the payments could be made to that person on behalf and as a fiduciary to the child. If the child lives with one of the parents, it is unclear whether the support can be paid directly to the parent or if it must be paid to the child. (See Drake, supra, 241 Cal.App.4th at 942, stating “When the adult child is disabled and lives with a parent who bears the primary financial responsibility for the child’s care, payment of adult child support to the parent makes sense.”) If the child does not live with either parent and does not have a guardian or other legal representative, the support could be paid into a trust account on behalf of the child.

Categories: Child Support

About the Author

Rachel Castrejon opened her own law practice immediately after graduating from Loyola Law School and passing the California Bar exam in 1998. When she first opened her practice, she handled a variety of cases including wrongful termination, criminal appeals and family law matters. Ultimately, she chose to practice exclusively in the area of Family Law because she likes helping her clients through a very emotional process. Rachel’s goal is to help her clients through one of the most difficult times in their lives – the breakup of their family. Rachel understands the importance of achieving a resolution that is good for the entire family, particularly the children involved.

Learn more about Rachel

Disclaimer: The information and examples provided herein are based on the laws and regulations at the time of writing. Prior to deciding how to hold title in your property, you should consult with an accountant, probate attorney or family law attorney to determine the best way to hold your property for the purpose you want to accomplish.

Mediation, Is It Right for Your Divorce and Child Custody Issues?

Are you going through a divorce and want to do it in a way that minimizes the anxiety, emotional turmoil and expense? If so, mediation is the right option of you.

Mediation is an alternative dispute resolution process that both parties agree to participate in rather than proceeding through the “court process” which requires the court to decide how to divide property, draft a parenting plan, and establish spousal and child support orders. During the course of the mediation, the parties will meet with the mediator to develop child custody parenting plans, divide assets, establish temporary support or income sharing arrangements and assist the parties in obtaining information from each other that is critical to the resolution of the divorce. As agreements are reached, the mediator memorializes the agreements in writing so that each party has an opportunity to review the terms with counsel prior to signing the documents.

Generally, it is recommended that each party consult with independent counsel to ensure that each party is comfortable with the terms of the agreement and that they fully understand the rights that they have with respect to the agreement. Though each party may consult with independent counsel, the cost associated with mediation is generally much lower than proceeding with court intervention where independent counsel is much more heavily involved.

Mediation allows you and your soon to be former spouse to control the outcome of your case rather than letting the court control the outcome. It also allows you openly and freely discuss issues that arise without fear that what is said in mediation will be used against you as the process is confidential. Thus, if you want a safe place to control the outcome of your divorce, mediation is the right choice for you.

Learn more about Mediation

Categories: Divorce, Mediation

About the Author

Rachel Castrejon opened her own law practice immediately after graduating from Loyola Law School and passing the California Bar exam in 1998. When she first opened her practice, she handled a variety of cases including wrongful termination, criminal appeals and family law matters. Ultimately, she chose to practice exclusively in the area of Family Law because she likes helping her clients through a very emotional process. Rachel’s goal is to help her clients through one of the most difficult times in their lives – the breakup of their family. Rachel understands the importance of achieving a resolution that is good for the entire family, particularly the children involved.

Learn more about Rachel

Disclaimer: The information and examples provided herein are based on the laws and regulations at the time of writing. Prior to deciding how to hold title in your property, you should consult with an accountant, probate attorney or family law attorney to determine the best way to hold your property for the purpose you want to accomplish.