Effective July 1, 2023, Florida law provides for support for Florida dependent adult children. New section 61.1255, Florida Statutes sets out procedures for establishing support and factors a judge must consider in deciding the right amount. See CS/CS/226 (signed June 12, 2023) and Laws of Florida, Ch. 23-213.
Consider the collaborative process to help plan for support and decision making for your special needs child who will become an adult dependent child.
Who Is a Dependent Adult Child?
Children with special needs become adults with special needs, dependent on their parents’ support, in whole or in part1.
A “dependent adult child” is an unmarried adult incapable of self-support as a result of physical or mental incapacity that began before the person reached age 18. For a special needs child under age 18, parents may make decisions for the child’s support and other needs. These decisions may carry forward once the child becomes a dependent adult.
Under newly-created section 61.1255, Florida Statutes, any right of a parent or other person to decide where the dependent adult child will live must be established in a guardianship proceeding. Special statutes govern developmental disabilities or guardianship for adult wards.
Use Your Contract Power to Agree on Needs of Your Special Child
Suppose your child is under 18 and the court has jurisdiction to decide child support. In such cases, you may agree in writing to provide for support in your existing divorce case. You may submit your agreement to the court for approval before your child turns 18. Further, judges have an independent duty to safeguard children by reviewing parents’ agreements.
But suppose you don’t provide in writing for support for your child who will become a dependent adult? Then, the amount of support must be established in a guardianship proceeding or in a separate support proceeding.
Consider the Collaborative Process — Agreeing on Needs for Your Dependent Adult Child
So…in your divorce (or paternity action), how may you plan to meet unique needs of your special child before the child becomes an adult? One approach is the collaborative divorce process.2 This flexible process enables your to harness your contract power reach agreements about your child’s special needs. Moreover, for events reasonably certain to occur, you may agree on a flexible parenting plan. Allied professionals can add great value to help you in the collaborative process.
Allied Professionals May Help You Address Needs of a Dependent Child
As you work on a flexible parenting plan for your dependent child with special needs, consider adding to your collaborative team allied professionals expert in, among other areas:
- Transition of exceptional students with disabilities from minor children to adults;
- Individual Education Plans (IEPs)3 and informed consent requirements to allow their parents to continue participating in educational decisions. See Section 1003.5716(d), Florida Statutes (effective July 1, 2023, Laws of Florida, 2023-96);
- To promote the child’s educational progress and developing essential skills to pursue higher education goals or employment, collaboration between public school personnel and private instructional personnel, including:
- Speech-language pathologists (section 468.1185, Florida Statutes).
- Occupational therapists (part III of chapter 468, Florida Statutes).
- Physical therapists (chapter 486, Florida Statutes).
- Psychologists (chapter 490, Florida Statutes).
- Clinical social workers (chapter 491, Florida Statutes).
- Behavior analyst service providers certified under section 393.17, Florida Statutes or licensed under chapter 490 or chapter 491, Florida Statutes, or registered paraprofessionals certified in behavior analysis and working under the supervision of such a provider.
- Family dynamics between siblings and special needs children;
- Federal and state benefits, resources, an support systems available for children with special needs4.
Estates, Trusts, and Guardianship – Allied Professionals for Dependent Adult Children
Other Collaborative allied professionals expert in trusts and estate planning for families with a child who will become a dependent adult child include:
What If You Don’t Address Your Special Needs Child’s Future Needs?
If you don’t address your special needs child’s future needs during your divorce, and the child turns 18, you and the child’s other parent may disagree about many issues.8 These issues include:
- Who will care for your child?
- What will care for your child look like when the child becomes an adult?
- How will you coparent the child after the divorce?
- Has your child timely and properly given informed consent for you to continue being involved in the dependent adult child’s education and skill development?
- How can you structure financial affairs to best help your adult child and your family?
- How will you and the other parent, exercising shared parental responsibility, resolve disputes?
Avoid future conflict. Choose the Collaborative Process. Raise parenting and support of a minor child with a disability who will be a dependent adult.
Amount of Support for Dependent Adult Child
Now suppose you haven’t agreed to support for your dependent adult child. Then, in determining the right amount of support, the judge must consider:
- Your dependent adult child’s income and assets;
- Any current and future needs of your child directly related to the child’s mental or physical incapacity and the substantial care and personal supervision directly required by or related to that incapacity;
- Whether you, the other parent, or another person pays for or will pay for the care or supervision of the child or provides or will provide substantial care or personal supervision to the child himself or herself;
- The financial resources available to you and the other parent to support, care, and supervise the child; and
- Any other financial resources or other resources or programs available for the support, care, and supervision of your child.
Further, the court must consider:
- Any state or federal programs and benefits that the dependent adult child is receiving or may receive due to reaching the age of majority; and
- The effect court-ordered support would have on the dependent adult child’s eligibility for such state or federal programs and benefits.
Petition for child support for a dependent adult child.
For your minor dependent child, the amount of support must be determined under the dissolution of marriage or paternity, child support, and time-sharing statutes. But, for your adult dependent child, to establish support, the court must:
- appoint a guardian advocate, under chapter 393, Florida Statutes; or
- appoint a guardian under chapter 744, Florida Statutes
At any time, your dependent adult child, you, the child’s other parent, or another person, including an agent under the adult child’s durable power of attorney, or the adult child’s guardian or guardian advocate, may ask the court to establish support. See Section 744.422, Florida Statutes.
A guardian of a dependent adult child may request an order requiring either or both parents to pay periodic amounts for the support, care, maintenance, education, and any other needs of a dependent adult child, if not otherwise provided for in the adult child’s guardianship plan.
Related Links
Footnotes
- Namkung, E., Song, J., Greenberg, J., Mailick, M., & Floyd, F. (2015), The relative risk of divorce in parents of children with developmental disabilities: Impacts of lifelong parenting, American Journal on Intellectual and Developmental Disabilities, 120. 514-526. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4624231/; Patja K, Iivanainen M, Vesala H, Oksanen H, Ruoppila I. Life expectancy of people with intellectual disability: A 35-year follow-up study, Journal of Intellectual Disability Research, Vol 44, Part 5, pp. 591-99 (Oct 2000); Taylor JL, Mailick MR. A longitudinal examination of 10-year change in vocational and educational activities for adults with autism spectrum disorders, Developmental Psychology. 2014; 50(3):699–708 Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3951267/
- Kales & Kales, PLC, Collaborative Divorce and Special Needs Children, February 11, 2014, available here: https://www.kaleslaw.com/collaborative-divorce-and-special-needs-children
- McMurtrey, Katherine, The IDEA and the Use of Mediation and Collaborative Dispute Resolution in Due Process Disputes, 2016 Journal of Dispute Resolution (2016) available here.
- Staff Analysis, CS/CS/SB 226, n. 10 – Support for Dependent Adult Children, effective July 1, 2023 available here; Special Needs Alliance, Government Benefits, available at https://www.specialneedsalliance.org/special-needs-101/government-benefits/ (last visited June 13, 2023).
- Special Needs Alliance, Administering a Special Needs Trust: A Handbook for Trustees (2022 Ed.), at p. 4, available at: https://www.specialneedsalliance.org/wp-content/uploads/2022/01/2022-SNA-Handbook.pdf. (last visited June 13, 2023)
- Sebastian V. Grassi Jr., Estate Planning for a Family With a Special Needs Child, 23 PROB. & PROP. 14 (Aug. 2009) (covering both government benefit programs and special needs trusts); Stuart D. Zimring & A. Frank Johns, Special Needs Trusts and Ethics: For Attorneys, Who’s the Client Quickly Becomes Who’s on First?, 5 NAELA J. 71 (2009); Levit, N, Researchgate, Familial and Matrimonial Agreements: An Annotated Bibliography, available here.
- Staff Analysis, CS/CS/SB 226, n. 10 – Support for Dependent Adult Children, effective July 1, 2023 available here
- Florida Academy of Collaborative Professionals webinar, Special Needs Families and the Collaborative Process, presented by Rebecca H. Fischer, Ed Sachs, Thabatta S. Mizrahi, Joran Niefeld, Jerome H. Poliacoff, and Carolann Mazza, October 29, 2020