Child Support for Disabled Child Over 19

Child Support for Disabled Child Over 19

By Carl O. Graham

Absent earlier emancipation, in Colorado, parents owe a duty of child support until the later of the child’s 19th birthday, or the month after the child’s graduation from high school. And there is a third exception – court-ordered child support for disabled child over the age of 19. If the child is unable to support himself due to disability, the court can find that the child has never emancipated, and continue support beyond his 19th birthday.

So parents can owe child support for disabled adults – with certain caveats.

Child Support for Disabled Child

Colorado’s child support statute provides:

“If 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“

C.R.S. 14-10-115(13)(a)(II).

Duration of Child Support for Disabled Child Over 19

Child’s Disability Must Occur Prior to Emancipation

Colorado child support law presumes that a child emancipates upon turning 19. If the child who turned 19 was the only child for whom support was owed, support terminates, unless the child is still in high school, or is disabled.

The statute uses the term “continue beyond the age of nineteen”, rather than saying that support is payable for a child over the age of 19 who is disabled. This means that disability stops emancipation at age 19:

“If a child is physically or mentally incapable of self-support when he attains the age of majority, emancipation does not occur, and the duty of parental support continues for the duration of the child’s disability.”

Koltay, at 1376.

However, once a child has emancipated, the duty of support terminates. There is no duty of child support for disabled adults who had already emancipated at the time the disability occurred. That child/adult will have to rely upon assistance from government programs, or voluntary support from family, rather than court-ordered child support.

Colorado has also held that upon an emancipating event occurring (in that case, marriage), the duty of support was terminated. Berglund. Note that there is no Colorado case which explicitly holds that there is no duty to pay child support for disabled children when the disability occurred after emancipation, but the plain language of the statute and of Koltay makes clear that only a disability while under 19 prevents emancipation.

Additionally, several states which have considered this issue, going back even more than 100 years, have held that once child support terminates due to emancipation, a subsequent disability as an adult does not reverse that emancipation and impose a duty of support:

Caveat – As we are a Colorado law firm, we do not keep current with out-of-state cases, so this list of states holding that a disability after emancipation does not result in a child support obligation is only current as of several years ago when our firm last researched this issue for pending child support litigation.

Termination of Child Support for Disabled Adults?

Colorado’s child support law does not contain any termination clause when child support is being paid to a disabled child, now adult. That means that as long as the disability continues, the parents owe a legal duty of support – i.e. for the rest of their lives, if necessary.

Degree of Disability Required to Prevent Emancipation

There is very little case law in Colorado concerning whether a child is disabled for purposes of child support. The child support statute employs, without explanation, the term “mentally or physically disabled” (C.R.S. 14-10-115(13)(a)(II), and as quoted above, Koltay uses the (slightly) more helpful phrase “physically or mentally incapable of self-support”.

But the degree of disability required will necessarily be a very fact-specific inquiry, determined on a case-by-case basis, and not have a bright-line rule imposed by the Colorado Court of Appeals. The condition in two cases where the court ordered child support for the disabled child to continue beyond the age of 19 include:

  • Intellectual Disabilities (“undisputably mentally retarded”) which prevented the child from living on her own or supporting herself. Cropper.
  • Rheumatoid arthritis, morbid obesity, daily pain, fatigue & swelling, which resulted the child not being able to walk, sit or stand for extended periods of time, and requiring assistance to climb stairs or even shower. Griffis. (See our blog post Child Support Payments for Disabled Child Over 19 for a detailed discussion of the Griffis case).

Nationwide, courts have dealt with whether an adult child’s disabilities were severe enough to require support to continue beyond the age of 19, and come to a variety of seemingly contradictory results, again highlighting the very fact-specific nature of the inquiry. For a recitation of those cases, and an overall excellent article, see “Child support Continuation for Disabled Children” by Gregg A. Greenstein in the December 2011 The Colorado Lawyer (no hyperlink, as the article is unfortunately only available through Fastcase).

Need Discovery if Parents Dispute Whether Child is Disabled

Most of the cases where the Graham.Law attorneys have seen child support continue for disabled adults, the fact and severity of the condition was obvious and not in dispute. But should this be a contested issue, the parents cannot expect to simply show up in court and testify on their own – they will likely need:

  • Extensive discovery, including obtaining the child’s medical and educational records.
  • Detailed testimony as to exactly how the disability affects the child on a daily basis.
  • Potentially expert testimony from the child’s treating physician as to how the disability limits the child.

Impact of Social Security Disability Insurance Payments (SSDI) on Child Support

While normally a disabled adult must have a sufficient work history to receive SSDI payments, there is an exception relevant here. The Social Security Administration pays SSDI to disabled adults with a disability which began before the child turned 22 on the account of a parent who is either deceased with enough SS credits, or is himself/herself already receiving Social Security benefits.

Known as SSDI Disabled Adult Child (DAC) benefits, these payments continue as long as the person has the disability. For more information about the program, see this helpful SSA pamphlet, Benefits for Children with Disabilities.

The impact of Social Security payments on child support is complicated, and depend upon the nature of the payments received. See our Social Security, Alimony & Child Support article for more details.

While the Colorado child support statute is silent on the impact of a child’s own SSDI payments on child support, it does state that “Any additional factors that actually diminish the basic needs of the child may be considered for deductions from the basic child support obligation.” C.R.S. 14-10-115(11)(b). And that includes income of the child which reduces living expenses.

The Colorado Court of Appeals has held that this provision includes considering the disability payments a child receives due to the custodial parent’s disability (the rule is the opposite for the non-custodial parent!). In Quintana, the SSDI payments received by the child due to the custodial mother’s disability did count to offset the child’s needs on the child support worksheet, because there was nothing in the statute which precluded those payments from counting.

See also Anthony-Guillar, where the appellate court included as income of the child payments the SSA was making for the child’s benefit. The rationale from these two cases would apply to a child receiving SSDI in his/her own right, even if those payments went to a “representative payee” and not the child. Since those SSDI payments are not explicitly excluded from consideration in the Colorado child support law, it does count as income of the child to the extent it reduces the child’s living expenses.

In short, the disabled adult undeniably has Social Security income, and those SSDI payments are not excluded from the worksheet by Colorado support laws.

Do It Yourself Divorce – Modifying Child Support

If you are the custodial parent and the youngest/only child who is turning 19 has a disability rendering them physically or mentally incapable of self-support, if the other parent disputes the disability, you should file a motion to modify child support to keep in place beyond the age of 19 to ensure no break in support.

If you are the child support payor, and are paying support for multiple children, and one of them emancipates, you need to file a motion to modify child support because there is no automatic reduction upon a child turning 19 when other children remain.

As indicated above, cases involving child support for disabled children are complex, fact-specific inquires which will necessitate discovery and potentially expert testimony. So realistically, they are not cases you should handle yourself, however if you cannot afford counsel, it’s better to at least file a motion to modify child support without an attorney than it is to file nothing.

In order to do that, you should review the JDF 1403i How to Modify Child Support, then complete and file the following two forms with the court:

Read the General Instructions in the Do It Yourself Divorce Guide for information on how to fill out and serve blank pleadings.

FAQ – Child Support for Disabled Child Over 19

When does child support end for disabled children?

As long as an adult child has a disability which started prior to the child turning 19, the parents’ duty of child support in Colorado continues as long as the child has the disability, and therefore for a lifelong disability, support payments will not terminate.

Can a parent receive spousal support when you have a disabled child?

If a spouse is a stay-at-home parent caring for a disabled child (or disabled adult child) who needs constant care, that parent is unable to work, and will have no income imputed, which may qualify him/her for alimony.

Tag: 
Family Support
Team Member: 
Carl O. Graham