logismos said:
To whom would the payments be made? How would the amount to be paid be determined?Would this be considered child support, or something else?
My response:
ADULT CHILD SUPPORT: (California, only)
Pending a domestic relations action or any other proceeding where there is at issue the support of a minor child (or an adult child for whom support may be ordered pursuant to Ca Fam § 3901 (certain adult children still in high school) or § 3910 (incapacitated adult children), the court may order either or both parents to pay "any amount necessary" for the support of the child. [Ca Fam § 3600; see also Ca Fam § 4001]
As to a minor child (or an adult high school child owed a duty of parental support under Ca Fam § 3901), "support" includes "maintenance and education." [Ca Fam § 150]
Amount--mandatory "statewide uniform child support guideline":
Notwithstanding the broad language of Ca Fam § 3600 ("any amount necessary . . ."), all courts are required to adhere to the "statewide uniform child support guideline" (Ca Fam § 4050 et seq.) in fixing the amount of child support and allocating the obligation between the parents. The "guideline" applies in all child support cases, with regard to any child (
minor or adult) owed a statutory duty of support, regardless of whether the issue is a "temporary" or "permanent" order. [See Ca Fam § 4052--court "shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article"; Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1326, 16 Cal.Rptr.3d 489, 495]
To the extent of their ability, both parents have an "equal responsibility" to support a child "of whatever age" (whether a minor or an adult) "who is incapacitated from earning a living and without sufficient means." [Ca Fam § 3910(a)]
"Joint and several" obligation:
The parents are equally responsible for providing support under § 3910(a) to the extent of their respective abilities. [Ca Fam § 3910(a)]
In effect then, the § 3910(a) obligation is really "joint and several." [Chun v. Chun (1987) 190 Cal.App.3d 589, 597, 235 Cal.Rptr. 553, 558; see Marriage of Drake (1997) 53 Cal.App.4th 1139, 1161, 62 Cal.Rptr.2d 466, 480-481--fact guideline formula does not place monetary figure on each parent's support duty does not affect their mutual obligation]
Duty runs to child; no abatement of cause of action by parent's death:
The § 3910(a)
obligation runs to the incapacitated adult child, although it is enforceable by an action initiated by the other parent. Consequently (and because the obligation is effectively joint and several, above), a parent's § 3910(a) duty continues despite the other parent's death; and a § 3910(a) action initiated by one parent is not abated by his or her intervening death, but may be continued by his or her successor in interest. [Marriage of Drake, supra, 53 Cal.App.4th at 1152, 62 Cal.Rptr.2d at 475]
Family law court jurisdiction:
Like the duty to support minor children (Ca Fam § 3900), a parent's § 3910(a) obligation is enforceable in any marital proceeding or other action under the Family Code where child support is in issue. [See Ca Fam §§ 58, 2010(c), 4001]
The obligation is also enforceable (by a parent
or the child) in an independent civil action (Ca Fam § 4000). But that can be a far lengthier and more costly process than a motion in a pending family law action. [Marriage of Lambe & Meehan (1995) 37 Cal.App.4th 388, 392, 44 Cal.Rptr.2d 641, 642]
Cannot be divested by agreement:
An agreement between the parents that impairs their § 3910(a) support obligation or that purports to divest the family law court of jurisdiction over § 3910(a) child support orders is void as against public policy. [Marriage of Lambe & Meehan, supra, 37 Cal.App.4th at 391-393, 44 Cal.Rptr.2d at 642-643--family law court's power "cannot be compromised"
during adult child's incapacity]
Compare--action by child:
The "procedural convenience" of invoking family law court jurisdiction to adjudicate § 3910(a) child support is available only to the parties to the underlying family law proceeding--i.e., the husband and wife (Ca Rules of Court Rule 5.102(a)). By contrast, the child's independent remedy to compel § 3910(a) support remains a separate civil action against either or both parents (Ca Fam § 4000). [Marriage of Lambe & Meehan, supra, 37 Cal.App.4th at 392, 44 Cal.Rptr.2d at 642, fn. 2]
"Without sufficient means" determination:
An adult child is owed a § 3910(a) support duty only if he or she is both "incapacitated from earning a living") and "without sufficient means." Recognizing that the statutory purpose is to protect the public from the burden of supporting a person whose parents are able to do so, the question of "sufficient means" is to be resolved in terms of the likelihood the child will become a public charge. [Marriage of Drake (1997) 53 Cal.App.4th 1139, 1154, 62 Cal.Rptr.2d 466, 476--"parent's duty to support an adult child does not arise only when the child would otherwise be 'turned into the street'"]
Effect of other sources of support:
It follows, therefore, that a parent's § 3910(a) obligation is not automatically discharged by the fact the child receives support from independent sources--such as a support trust funded by the other parent. Placing the entire support burden on the trust (or other source) raises the prospect the incapacitated child will become a public charge, defeating the statutory purpose. [Marriage of Drake, supra, 53 Cal.App.4th at 1154, 62 Cal.Rptr.2d at 476-477--H bound to support disabled adult child where evidence indicated support trust set up by W would otherwise run dry; see also Chun v. Chun (1987) 190 Cal.App.3d 589, 595, 235 Cal.Rptr. 553, 556-557--"It cannot be that (incapacitated adult child) must disavow her mother's continued support, and thereby make herself a public charge, in order to establish her right to support from her father" (parentheses added)]
"Incapacitated from earning a living" determination:
Cases conclude a child is "incapacitated from earning a living" for § 3910(a) support purposes only upon proof of a mental or physical disability preventing the child from being able to work; or, at least proof of inability to find a job due to factors beyond the child's control. [Jones v. Jones (1986) 179 Cal.App.3d 1011, 1014-1015, 225 Cal.Rptr. 95, 97; see Marriage of Drake, supra (chronic paranoid schizophrenia); Chun v. Chun, supra ("emotionally disabled" adult child with 12-year-old maturity level); Farber v. Olkon (1953) 40 Cal.2d 503, 254 P.2d 520 (mentally ill); Woolams v. Woolams (1952) 115 Cal.App.2d 1, 251 P.2d 392 (paralysis); and cases cited in Rebensdorf v. Rebensdorf (1985) 169 Cal.App.3d 138, 146, 215 Cal.Rptr. 76, 80-81 (J. Franson dissent.opn.)]
Finally, get a consultation with a local Family law attorney. You're not going to understand all of this, or the ramifactions.
IAAL
