In California, if a person is ordered to pay child support to the other parent for a minor child, that obligation usually lasts until the child turns 18 or graduates from high school, whichever is later.  The law also says that if the child takes forever to finish up high school, child support definitely ends at age 19.

The laws in other states may be different.  But because of our child support law here in the Golden State, parents usually do not have to worry about paying child support for their adult children — except in two situations.  One is if the parents agree to pay adult child support and the family court makes that agreement a court order.  The other one is if the parents have a child “who is incapacitated from earning a living and [is] without sufficient means”.  If this is the case, child support may be required for a child “of whatever age”.  These quotes comes from Family Code section 3910, subd. (a).

But it may be hard to figure out who is actually “incapacitated” from earning a living and who simply has a hard time getting, or holding down, a job.  Indeed, many of us know individuals who are not employed and who we cannot imagine ever being able to succeed in the real world.

What causes this?  In other words, is it an overprotective parent; laziness; a difficult personality; or a disability that truly makes employment impossible, even if the individual in question has the drive to find a job?

These questions were directly or indirectly before the California Court of Appeal in San Diego recently.  In a recent 3-0 decision, the justices reversed a family law judge for making an order establishing a duty of parental support.

In this particular case, known as Cecilia W. v. David W., the trial court was confronted with the situation regarding a divorced couple’s son, who is about 28 years old.  The son has Tourette’s syndrome and attention deficit hyperactivity disorder (ADHD).

The son’s psychologist testified that these conditions affect his daily life, “resulting in a ‘constant struggle’ without external support, schedules, and feedback to help him self-regulate emotion and to ‘talk him down from high levels of anxiety and panic attacks that significantly get in the way of performing'”.  On the other hand, evidence revealed that the son graduated from high school on time and, over the course of five years, earned two associate degrees with a 3.3 grade point average.

The son is now enrolled at UCSD (the University of California at San Diego) and lives with roommates on campus when school is in session.  He receives certain accommodations, such as “Disabled Student Services intervention, quiet test facilities, and flexibility for test completion time, as well as use of a laptop and tape recorder in class”.  He has a B average.  He receives $30,000.00 from UCSD annually, of which $5,000.00 is loans.

There was little evidence at trial on the ultimate issue, which is whether the son is unable to find work and be self-supporting.  Indeed, what little evidence there was suggested the son had an ability to work.

The son has never applied for a job, but even his mother — the one who was asking for adult child support — testified that he could get a minimum wage job if he was not going to school.

Still, the judge said it was “going to [be] very hard for him to find a job” and that his issues with focus and stress would “interfere with the ability to hold the job”.  The trial judge said the son could potentially get a minimum wage job, but that would require ADA [Americans with Disabilities Act] accommodations.  She also said that if the son was not in school, he would lose the financial aid he was receiving and that a minimum wage job would not permit his parents’ standard of living.

Writing for the Court of Appeal, Justice Richard Huffman stated that whether the son “was unable to work and attend school at the same time is not the relevant incapacity for section 3910.  Parents have no obligation to support an adult child, otherwise capable of working, while he or she pursues an education”.

Justice Huffman also stated that merely being disabled or having possible difficulties in the workplace is not enough.  Rather, he said, “the incapacity standard requires 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”.

As to the prong of section 3910 that requires the child be “without sufficient means”, the justices stated the proper test is the “‘likelihood a child will become a public charge'”.  In other words, will the public, through some sort of aid program, end up supporting the individual?

In conclusion, the appeals court said that where there is a dispute over incapacity, “[v]ocational evidence likely will be necessary to meet these standards and there is little to no such evidence here”.

Justice Huffman was joined in his opinion by Justices Judith McConnell and Terry O’Rourke.  The case was certified for publication, which means it can be cited as precedent in the future.  Although this branch of the Court of Appeal is based in San Diego (Fourth Dist., Div. One), decisions of the Court of Appeal in California that are certified for publication are binding on all state trial courts unless there are one or more different decisions on the same issue from other branches of the Court of Appeal.