Building the Case for Adult Child Support

• Publication year: 2021
• Author: Elsa-Marie Medeiros

Building the Case for Adult Child Support

Elsa-Marie Medeiros

Elsa-Marie Medeiros is an associate at Moradi Saslaw LLP. She received her Juris Doctorate and certificate in Child Advocacy from UC Hastings College of the Law. She also served as an editor for the Hastings Law Journal. She graduated summa cum laude from the University of San Francisco with a Bachelor of Arts in Politics and earned a certificate in Human Rights from Stanford University. She is a Court Appointed Special Advocate in San Francisco County and speaks fluent Portuguese.

It is common knowledge that when parents divorce or separate with minor children there is a financial obligation to support the children until they attain eighteen years of age. However, parents can be statutorily required to support their children beyond the age of majority.¹ This occurs in two situations: (1) the adult child is eighteen years old in high school and is not self-supporting² or (2) the adult child is incapacitated from earning a living and without sufficient means.³

Adult child support is an area of family law that does not garner much attention because the issue seems to be uncommon. It is still important though to be aware of the issue because it can potentially pose a financial burden or legal liability on clients—payments can last the lifetime of the children and a parent can be sued for unpaid support. A basic understanding of the statutes and case law on adult child support is crucial to advise clients on the extent of child support obligations and to protect the welfare of adult children.

High School Adult Child

Pursuant to Family Code section 3901(a)(1) (former Civil Code section 196.5), the duty of support continues for (1) "an unmarried child," (2) "who has attained 18 years of age," (3) "is a full-time high school student," and (4) "is not self-supporting." This duty continues "until the time the child completes the twelfth grade or attains nineteen years of age, whichever occurs first."⁴

According to Family Code section 3901(a)(2), a child does not have to be a "full-time" high school student if "the child has a medical condition documented by a physician that prevents full-time school attendance." Further, the payee parent is not required to provide "monthly proof" that the adult child satisfied the conditions for continued child support after age eighteen to enforce the order.⁵ Rather, the payee parent is only required to notify the payor parent of any condition that would terminate the duty of support, and if the payee parent does not, any overpayments are refunded.⁶

There is only one published case that analyzes the elements of Family Code section 3901(a)(1). In Marriage of Hubner, the payor parent argued he did not have a duty of continued support for his unmarried eighteen-year-old son because he was not a "full-time high school student."⁷ He participated in a full-time American Field Service academic foreign exchange program at a high-school in Japan that did not count towards his high school diploma in the United States⁸ The trial court agreed and suspended the adult child support obligation.⁹

The Second District Court of Appeal, however, reversed the decision and held "[t]here is no requirement that the supported child must demonstrate a good faith effort to graduate from high school as soon as possible, around the date the payor spouse reasonably could have expected that obligation to cease."¹⁰ In addition, the duty of support is not conditioned "on the child's participation only in those classes that propel her or him toward graduation at the earliest possible date."¹¹ The son was enrolled in a full-time high school foreign exchange program, therefore, the payor parent had a duty of continued support.¹²

The court in Marriage of Hubner reveals that the "full-time high school student" requirement is self-explanatory. If the child is enrolled full-time in a high school regardless of whether the class credits count towards the diploma, the requirement is met. Further, while there are no published cases that specifically discusses the "self-supporting" element, the court in Marriage of Hubner, did briefly mention "emancipation" as proof of a self-supporting adult child.¹³

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Incapacitated Adult Child

Pursuant to Family Code section 3910(a), parents must support "a child of whatever age" who is (1) "incapacitated from earning a living" and (2) "without sufficient means." Substantial evidence must support the finding.¹⁴ The cases that fall under this code section are sometimes heartbreaking because parents may not agree their child is incapacitated or unable to earn a living. These are difficult realities some...