Child Supprot Continuation for Disabled Children
| Publication year | 2011 |
| Pages | 61 |
2011, December, Pg. 61. Child Supprot Continuation for Disabled Children
December 2011
Vol. 40, No. 12 [Page61]
Family Law articles are sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles focus on practice tips and discussions of current issues within the realm of family law.
Coordinating Editors
Trish Cooper, Denver, of the Law Office of Stephen J. Harhai-(303) 329-8300, tcooper@harhai.com; Meredith Patrick Cord, Colorado Springs, of Johnson and Cord, PC-(719) 471-4034, mpc@johnsoncord.com
About the Author
Gregg A. Greenstein is a shareholder and director with Frascona, 'Joiner, Goodman, and Greenstein, P.C. in Boulder-(303)494-3000, gregg@frascona.com.
Colorado law is limited with regard to continuation of child support for a disabled child approaching the age of 19. Social Security disability designations are not a litmus test for determining whether child support should continue. The inquiry focuses on whether the child has the physical and mental capabilities to be self-supporting, to establish his or her own residence, and generally to manage personal affairs.
Child support does not automatically terminate in Colorado when a child reaches age 19, if the child is disabled.(fn1) Pursuant to CRS §§ 14-10-115(13)(a)(II) and 15(b)(II):
There are no other Colorado statutes, rules regulations, or case law that clearly define when a child is "disabled" for the purpose of continuing child support. This article examines some common disability situations, Colorado law concerning disability and child support matters, and law from other jurisdictions that have considered whether child support should continue beyond the age of majority due to a child's disabilityIf the child is mentally or physically disabled, the court or the delegate child support enforcement unit may order child support, including payments for medical expenses or insurance or both, to continue beyond the age of nineteen (emphasis added).
Court's Discretion to Continue Child Support When Child is Disabled
Continuing child support beyond age 19 is not mandatory, even where the child is disabled. The court may order continuing child support when a child is disabled, but is not obligated to do so. CRS § 14-10-115(13)(a)(II) uses the word "may" instead of "shall." The use of "may" gives the court discretion to continue child support.(fn2)
Colorado Case Law Concerning Child Support and Disability
A child is emancipated for purposes of child support termination when the child reaches age 19.(fn3) However, if a child is physically or mentally disabled, support may continue beyond the age of 19.(fn4) When the child reaches the age of emancipation, there is a statutory presumption of emancipation.(fn5) Thus, the parent seeking to extend child support payments has the burden of overcoming the presumption and proving that the child suffers from a disability that justifies the continuation of child support.
The few Colorado appellate cases that have addressed child support continuation and disability have dealt with fairly extreme situations. For example, in Koltay v. Koltay,(fn6) the child had physical and mental conditions that rendered her "totally incapacitated." Similarly, in In re Marriage of Cropper,(fn7) the parties' daughter was "undisputedly mentally retarded" and the parties stipulated to her disability status.
In Koltay, the Colorado Supreme Court explained that at the age of emancipation, a person is presumed to possess the physical and mental capabilities to support himself or herself, to establish his or her own residence, and in general to manage his or her own affairs.(fn8) The Court further noted that under normal circumstances, parents have no legal obligation to support their children beyond the age of majority.(fn9) However, when a child is incapable of being self-supporting by reason of some physical or mental disability, the duty of parental support may continue under certain circumstances.(fn10)
There is no Colorado case law or statutory authority providing that a Social Security Administration (SSA) disability classification renders a child eligible to continue to receive parental support. A child may have been diagnosed as having a mental disorder at the time he or she reaches age 19, and federal Social Security law may determine that the diagnosis constitutes disability; however, the determination does not necessarily mean that continued child support is warranted. For example, attention deficit hyperactivity disorder (ADHD) is found in the SSA listing of impairments manual(fn11)...
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