The number of children diagnosed with autism and related disorders has grown at what many call an alarming rate. In the 1970s and 1980s, about one out of every 2,000 children was diagnosed as autistic. Today, the Centers for Disease Control and Prevention estimates that one in 150 8-year-olds in the U.S. has an autism spectrum disorder.
Similarly, the number of children estimated to have Attention Deficit Hyperactivity Disorder has changed over time. Rates of ADHD diagnosis have increased substantially since 1997, according to the CDC.
While there is controversy about whether these statistics reflect a true increase in cases or a dispute concerning diagnostic criteria, there is little dispute that diagnoses have increased.
It is probably not a coincidence that the number of adult child support cases also seems to be on the rise. Until a few years ago, if you asked a family law attorney whether he or she had been involved with an adult child support case, the likely answer was no. The answer might be different if you asked today.
California Family Code section 3910 requires parents to support adult children under certain circumstances. Section 3910(a) first requires the adult child be “incapacitated from earning a living.” However, an adult child is only incapacitated from earning a living within the meaning of section 3910 if he or she demonstrates “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.” (Jones v. Jones (1986) 179 Cal.App.3d 1011, 1015.) Reported cases applying the incapacity standards are scarce, as section 3910 cases have been uncommon and have generally involved no dispute over capacity. A soon-to-be-published opinion by the Fourth Appellate District of the California Court of Appeal directs a trial court on remand to consider the potential relevance of accommodations provided under the Americans with Disabilities Act for establishing incapacity within the meaning of section 3910. (In re Marriage of Cecelia and David W. (11/3/15) 4 Civ D066918 Div 1.)
The second prong of section 3910(a) requires the adult child to be “without sufficient means.” “[T]he question of ‘sufficient means’ [is] resolved in terms of the likelihood a child will become a public charge.” (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1154.) “‘[T]he duty to support children of any age is legislatively designed to protect the public from the burden of supporting a person who has a parent…able to support him or her.” (Ibid.)
So how does this standard actually work? A disability by itself is insufficient. Clearly one can have a disability and earn a living. David Paterson is legally blind and served as New York’s Governor following stints in the New York State Senate and the District Attorney’s office of Queens County, New York. No one would say he is incapacitated from earning a living.
Likewise, a person “without sufficient means” alone does not meet the standard under section 3910. After all, many people, including most recent high school graduates, could meet this part of the test.
The incapacity standards require courts to “…focus not on the adult child’s conditions and their potential impact on employment, but rather on his or her ability to find work or become self-supporting in light of such conditions.” (Jones, at pp. 1014-105.) This suggests that the interplay between the two parts of section 3910, in light of the available vocational and medical evidence in each particular instance, is where these cases will turn.
Parents faced with this issue should seek an experienced attorney’s help – these cases are not the common child support cases most family law courts see on a daily basis. Strong counsel and advocacy in this area can help, balancing compassion for the adult child’s needs against the pursuit of financial light at the end of the parental tunnel.
BY: John Castellano