Recently I had a consult with a potential client who was inquiring about modifying a child support order. This is a very common occurrence over the course of a child’s life and something we see frequently in our office. However, there were a couple of wrinkles to her case. One was that her child had disabilities the others her child was 21.
In today’s blog, we will examine what is possible regarding extending Texas child support obligations regarding and adult child with disabilities.
Duty to Support your Child
In most child support cases in Texas, parents have the legal obligation to support their children until the child reaches the age of 18, or until the child stops going to high school whichever is later.
However, there are circumstances, where that is not always the case. If we examine Texas Family Code 154.001 where this duty recorded, we find that:
- The court may order either or both parents to support a child in the manner specified by the order:
- until the child is 18 years of age or until graduation from high school, whichever occurs later;
- until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law;
- until the death of the child; or
- if the child is disabled as defined in this chapter, for an indefinite period.
In reading this statute we learn it is possible for a court to extend child support obligations for a child that has a disability. We will discuss under what circumstances below.
Court Order Child Support for Disabled Child
The Texas Family Code Section 154.302 Provides that:
(a) The court may order either or both parents to provide for the support of a child for an indefinite period and may determine the rights and duties of the parents if the court finds that:
- the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support; and
- the disability exists, or the cause of the disability is known to exist, on or before the 18th birthday of the child.
(b) A court that orders support under this section shall designate a parent of the child or another person having physical custody or guardianship of the child under a court order to receive the support for the child. The court may designate a child who is 18 years of age or older to receive the support directly.
Who Can Bring a Case?
Under Texas Family Code Section 153.303:
- A suit provided by this subchapter may be filed only by:
- a parent of the child or another person having physical custody or guardianship of the child under a court order; or
- the child if the child:
(A) is 18 years of age or older;
(B) does not have a mental disability;
(C) is determined by the court to be capable of managing the child's financial affairs.
(b) The parent, the child, if the child is 18 years of age or older, or other person may not transfer or assign the cause of action to any person, including a governmental or private entity or agency, except for an assignment made to the Title IV-D agency under Section 231.104 or in the provision of child support enforcement services under Section 159.307.
An Independent Lawsuit or as Part of a Lawsuit
Texas Family Code Section 154.306 provides that an “action seeking support of an adult disabled child may be brought as part of another action or as an independent.”
How Much Child Support can a Court Order After Age 18?
Under the Texas Family Code Section 153.306:
In determining the amount of support to be paid after a child's 18th birthday, the specific terms and conditions of that support, and the rights and duties of both parents with respect to the support of the child, the court shall determine and give special consideration to:
- any existing or future needs of the adult child directly related to the adult child's mental or physical disability and the substantial care and personal supervision directly required by or related to that disability;
- whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child;
- the financial resources available to both parents for the support, care, and supervision of the adult child; and
- any other financial resources or other resources or programs available for the support, care, and supervision of the adult child.
Interestingly child support guidelines are not specifically listed. However, they are not excluded either and would like part of the court’s consideration.
Possession and Access of Adult Disabled Child
Much like children under age 18 a Court under Texas Family Code Section 154.309 can:
- A court may render an order for the possession of or access to an adult disabled child that is appropriate under the circumstances.
- Possession of or access to an adult disabled child is enforceable in the manner provided by Chapter 157. An adult disabled child may refuse possession or access if the adult disabled child is mentally competent.
- A court that obtains continuing, exclusive jurisdiction of a suit affecting the parent child relationship involving a disabled person who is a child retains continuing, exclusive jurisdiction of subsequent proceedings involving the person, including proceedings after the person is an adult. Notwithstanding this subsection and any other law, a probate court may exercise jurisdiction in a guardianship proceeding
Proof of the Needs of the Child
In cases involving a disabled child there will need to be proof regarding the needs of the child even if that child has a disability when seeking support for that disabled child.
The big questions that would be answered in the scenario I discussed in the beginning according to the statute are:
- Did the disability exist prior to the child turning 18? And
- Whether the child requires substantial care and personal supervision because of a mental or physical disability and is not be capable of self-support
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- Special Needs Children in Texas Child Support Cases
- Special Needs Children and Divorce in Texas
- Know How Children's Issues are Handled When Preparing for Your Texas Divorce
- 11 Things You Must Know About Texas Child Custody
- Can I get child support while my Texas divorce is pending?
- Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?
- Can I Sue My Ex for Retroactive or Back Child Support in Texas?
- Child Support and College Tuition in Texas
- Texas Child Support Appeals
- In Texas are Child Support and Visitation Connected?
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