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Support of a Disabled Adult Child

By Monica Dionisio and Kara Rose Didier

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We all know that a parent has a duty to support his or her minor child. This duty is clearly imposed in 43 O.S. §112(E), but what about an adult child? Can a parent be required to financially support a child who reached the age of majority? Not surprisingly, that answer depends.

This article explores the current status of the law in the United States regarding the following questions:

  1. Can a parent be required to support an adult child who has a disability?
  2. Does it matter when the child first became disabled?
  3. If a parent is required to pay child support, can a parent’s support obligation be reduced or offset by public benefits the child is receiving?

CAN A PARENT BE REQUIRED TO SUPPORT AN ADULT CHILD WHO HAS A DISABILITY?
In Oklahoma, a parent has a duty to support an adult child who is disabled and unable (as opposed to unwilling) to support himself. Sometimes, this is based on a court’s interpretation of 43 O.S. §112.1A. Notably, 43 O.S. §112(E) provides a specific exception for
43 O.S. §112.1A. 43 O.S. §112.1A(B) provides that with respect to a mentally or physically disabled child:

  • The court may order either or both parents to provide for the support of a child for an indefinite period and may determine the rights and duties of the parents
    if the court finds that:

    • the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support, and
    • the disability exists, or the cause of the disability is known to exist, on or before the eighteenth birthday of the child.
  • A court that orders support under this section shall designate a parent of the child or another person having physical custody or guardianship of the child under a court order to receive the support for the child. The court may designate a child who is eighteen (18) years of age or older to receive the support directly.

Other times, the court instead relies on the decisions of courts in prior cases. Occasionally, if the court has no supporting statutory or case law on which to rely, the court will forge ahead and base its decision on its interpretation of the historical common law relating to parental duties.

Interestingly, in Oklahoma, it usually is not necessary to prove that a child has a particular disability that may qualify the child for federal or state benefits. Instead, Oklahoma bases the definition of “disability” as one that causes the adult child to require substantial care and personal supervision, as specifically enumerated in 43 O.S. §112.1A(B)(2). As the Oklahoma Court of Civil Appeals concluded, “[a] court may only award disabled adult child support if the evidence shows a causal relationship between [the adult child]’s alleged mental or physical disability and his inability to support himself.”1

In other words, it is not the mere fact the adult child has a disability that triggers a parent’s ongoing duty to provide support. Rather, it is the fact that the child cannot support himself independently due to an existing disability that imposes the legal obligation on a parent to ensure support is available. If a child with a disability has sufficient income or resources to support himself, a court typically will not require a parent to pay child support to the child. The Court of Civil Appeals has also scrutinized treatment that is voluntary in nature (as opposed to judicially or medically required), finding that it falls short of “required substantial care and personal supervision.”2

It is important to note that parents who divorce always can agree voluntarily that child support will be provided for an adult child who has a disability. This typically would occur in the separation agreement or decree of divorce entered into by the parents when a divorce is finalized. 43 O.S. §112.1A(D)(1) provides a parent with physical custody or guardianship of an adult disabled child the right to seek continued support for that child at any time. Relatedly, the Oklahoma Supreme Court has found that even where an obligation is lacking in specificity or scope, that does not render it unenforceable.3 This benefits parties who may agree upon child support at the time of an agreed order but leave open the question of proper future amounts. However, this issue is best resolved at the time of the divorce, since waiting to raise this issue until child support is about to stop often results in protracted and hostile litigation.

Practitioners should not think that child support ordered under 43 O.S. §112(E) precludes the ability to seek child support under 43 O.S. §112.1A. The Oklahoma Court of Civil Appeals addressed this argument in 2011.4 When father argued that mother’s use of 43 O.S. §112(E) when the child was a minor prevented her, by issue preclusion, from re-litigating and extending his child support obligation, the Oklahoma Court of Civil Appeals pointed father to the exact language of 43 O.S. §112(E) which is excepted by the provisions of 43 O.S. §112.1A: “Except as otherwise provided by Section 11.2A of this title…”

DOES IT MATTER WHEN THE CHILD’S DISABILITY BEGAN?
Can a parent be required to pay child support for an adult child who did not have a disability when the child reached majority age, but later became disabled? In Oklahoma, an adult child must have incurred his or her disability before the child reaches the age of majority.5 The Oklahoma Supreme Court took a look at this when it evaluated a father’s request to have his 20-year-old son declared a “special needs child” under 43 O.S. §112.1A due to his substance abuse addiction.6 Father’s attempt to link his son’s substance abuse to mother’s usage of alcohol in his son’s presence coupled with her alleged permissiveness was unsuccessful.7 However, many courts have concluded that a child remains a “minor” if the child is never emancipated, no matter what the chronological age of the child may be.

CAN PUBLIC BENEFITS THE CHILD IS RECEIVING OFFSET OR REDUCE THE PARENT’S SUPPORT OBLIGATION?
Social Security payments received by an adult child may be taken into account when calculating the amount of the parent’s support obligation. Unlike calculation of child support for a minor child, the standard under 43 O.S. §112.1A requires a more individualized inquiry into the needs of a disabled adult and is therefore not susceptible to a generalized formula, such as the child support guidelines.8 The amount of support for a disabled child who has medical or psychological needs is unique to that person.9

In determining support under 43 O.S. §112.1A, the court must consider 1) any existing or future needs of the adult child directly related to the adult child’s mental or physical disability and the substantial care and personal supervision directly required by or related to that disability, 2) whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child, 3) the financial resources available to both parents for the support, care and supervision of the adult child and 4) any other financial resources or other resources or programs available for the support, care and supervision of the adult child.10 The Court of Civil Appeals recently determined the custodial parent is not under any obligation to seek additional financial resources or programs.11

43 O.S. §112.1A does not necessarily prevent a court from utilizing the guidelines associated with the calculation of child support for a minor child. After determining the factors stated in 43 O.S. §112.1A, the court may utilize the guidelines to assist in determining the financial resources of each parent to allocate to each parent their percentage of the support as determined under 43 O.S. §112.1A to meet the needs of the disabled adult.12

WHAT IS THE EFFECTIVE DATE OF MODIFIED CHILD SUPPORT ORDERS FOR ADULT DISABLED CHILDREN?
Is modification of a child support order for a disabled adult child retroactive to the date a motion to modify support is filed? Most recently, the Court of Civil Appeals determined that it is.13 The court read 43 O.S. §112.1A(F) and 43 O.S.
§118I(A)3 together in determining this issue.
14 While 43 O.S. §112.1A is silent as to the effective date of an order modifying support, §112.1A(F) provides that orders modified by this section are subject to modification and enforcement “in the same manner as any other order provided by this title.” Therefore, under the court’s reasoning, no conflict arises when subjecting the support orders defined in §112.1A(F) to the provisions of §118I(A)(3) and making modifications retroactive to the date a motion to modify support is filed.15 It should be noted this is a different result than that reached by the Court of Civil Appeals in 2019, wherein the court reasoned that §118I did not extend retroactive application to modified support order for adult children and declined to make its order retroactive to the date of filing.16

ABOUT THE AUTHORS
Monica A. Dionisio is an attorney at Hester, Schem, Hester & Dionisio in Edmond. She is a litigation attorney who primarily practices in family law matters. She received her J.D. from the OU College of Law in 2012.

Kara Rose Didier is an attorney at Hester, Schem, Hester & Dionisio in Edmond. She is a litigation attorney who primarily practices in family law matters. She received her J.D. from the OCU School of Law in 2012.

1. Patrick v. Patrick, 2016 OK CIV APP 52, 15, 377 P.3d 176.
2. Id. at 18.
3. Holleyman v. Holleyman2003 OK 48, 12, 78 P.3d 921.
4. Gregory v. Gregory, 2011 OK CIV APP, 259 P.3d 914.
5. 43 O.S. §112.1A(B)(1)(b).
6. Patrick, 2016 OK CIV APP 52, 377 P.3d 176.
7. Id. at ¶19.
8. Morgan v. Morgan, 2019 OK CIV APP 5, 41, 438 P.3d 837.
9. Id.
10. 43 O.S. §112.1A(E).
11. Morgan2019 OK CIV App 5, 46, 438 P.3d 837.
12. Id. at 42.
13. Marriage of Teague2020 OK CIV APP 1,___P.3d___.
14. Id. at ¶10.
15. Id.
16. Morgan v. Morgan2019 OK CIV APP 5, ¶¶49-50, 438 P.3d 837.

Originally published in the Oklahoma Bar Journal -- OBJ 91 pg. 24 (February 2020)