It is a stressful time for most couples who are going through the breakup of a family unit.  It is not easy to divide assets and/or debts, determine timesharing for children and calculate child support.  Although child support generally stops when the child reaches age 18, or graduates high school, whichever is later, it may be possible to extend child support payments into adulthood when a child has a developmental or physical disability.

Florida law allows the family court to extend child support for a dependent person beyond 18 years of age when (1) such dependency is because of a mental or physical incapacity which began prior to the child reaching the age of majority, or (2) if the child becomes dependent between ages 18 and 19 and is still in high school, performing in good faith with a reasonable expectation of graduation before age 19.[1]   The legal basis to extend child support for an adult child with disabilities is governed by Section 743.07(2), Florida Statutes, “This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority…” A petition to extend child support for a child with a disability can be made either during the initial divorce or paternity proceedings or post judgment, by filing a petition for modification of child support.

A child is considered to have a disability if he or she has been diagnosed by a medical professional with a physical or intellectual disability, such as cerebral palsy, down syndrome or autism.  The disability must be such that the child will not be self-supporting as an adult, and he or she will require assistance with daily living activities. If contested, the claimant would have to prove incapacity for self-support by independent and verified proof.

After a petition to extend child support into adulthood due to a disability is filed by one of the parties, the parties can either enter into an agreement for continued child support payments, or have a trial on the petition to extend child support and request that the family court decide whether extended child support is warranted.

When the parties agree that their child has special needs and requires continued child support into adulthood, they can include a provision in their settlement agreement extending child support past age of majority.  The amount of support for an adult child with an incapacity will vary from case to case since there are too many variations of “incapacity”.  There are no definitive reported decisions as to whether the child support guidelines apply to determine the amount of support for an adult child with incapacity. The amount of support would presumably be determined by the standard of actual need and the ability of each parent to pay.

When there is no agreement, which is usually the case, the Court must decide if a child requires continued child support past age of majority.   The Court will take testimony from the parties, witnesses and any experts in order to determine whether or not their child requires continued support, and if so, the Court will calculate the amount of child support based upon the need and ability to pay standard.  See Hanley v. Hanley, 734 So. 2d 529 (Fla. 4^th DCA 1999), where the Court ordered the payment of support for a child with learning disabilities to continue beyond the child’s 18^th birthday due to his special needs. How the amount of child support was determined was not explained in the opinion.

At a trial, a parent will have to prove that the child’s disability and/or incapacity began before age 18, or, between ages 18 and 19 and while they were still in high school with an expected graduation before age 19.

While extended child support can provide much needed financial assistance to a parent, once a child turns age 18 he or she is considered a legal adult.  In order to continue to make legal and financial decisions for their adult child, a parent may want to consider filing a Petition for Guardianship of the Person and/or Property of the adult child.

Guardianship Considerations

In addition to seeking extended child support as part of a divorce or paternity proceeding, a parent may also want to consider filing a Petition for Guardianship of the person and/or property once the child reaches age of majority.  A formal Guardianship allows a parent to make important decisions for their child (now called a “Ward”) who is unable to because of the disability.  This includes applying for government benefits, opening bank accounts, paying bills, making medical decisions, and determining residence.  It is best to consult with a licensed Florida attorney who is familiar with guardianship law or with a local legal aid office, such as Dade Legal Aid, that has attorneys who perform pro bono legal work.

With a guardianship, and depending on the type of guardianship, annual reports will be required to be filed with the Court.  A Guardian of the Person may be required to file a physician report with the guardianship court to demonstrate that the Ward is in good health.   A Guardian of the Property will be required to file annual reports showing the assets, income and expenses of the Ward.  Engaging an attorney is generally required in Guardianship proceedings, and the attorney can assist in making sure that the required forms for the Ward are timely filed.

Florida Agency for Persons With Disabilities (APD Services)

In addition to seeking child support, a parent of a child with disabilities who will require support into adulthood may want to apply for assistance with the State of Florida Agency for Persons With Disabilities (APD).  APD provides services to children who are Florida residents with one the following disabilities:  autism, cerebral palsy, spina bifida, intellectual disabilities, Down syndrome, Prader-Willi syndrome, Phelan Mcdermid syndrome and children age 3-5 who are at high risk of a developmental disability.  APD can assist in obtaining Medicaid waivers and funding for certain expenses.  It can also provide placement in a care facility, supportive living services and supportive employment services.

To obtain the maximum benefit of APD services, a parent must apply for APD services as early as possible and should do so prior to the child’s 18^th birthday.  Once a child receives APD services as a child, the APD services will continue to be available when the child becomes an adult.

In closing, it is important that parents who have children with disabilities plan ahead for the child’s financial needs prior to the child reaching age 18.  Researching the resources available in the community to help children with physical and developmental disabilities can make navigating child support and long term care issues feel less daunting.

[1] See Section 743.07(2), Florida Statutes (2022).