Parental Responsibility to Support Adult Dependent Children with Disabilities

By: Beth T. Vogelsang, Esquire

Korey Fernandez turned 18 years old on May 22, 2010, the age of legal emancipation in the State of Florida. Ordinarily this would have terminated the legal obligation of Korey’s parents to support her. In Korey’s case, however, she succeeded in filing a lawsuit against her father for adult dependent support nine years later, when Korey was 27 years old.

Korey was born with Down’s Syndrome, and her IQ is between 60 and 70. Her disability prevents her from securing and maintaining employment. She is dependent and requires daily financial and physical assistance due to her disability.

Florida Law on Adult Dependent Support

Florida Statutes Section 743.07, Florida Statutes (2019), removed the disability of nonage to those 18 years or order. But it preserved an exception for continued support for a certain class of dependent adults. Section 743.07 (2) provides that

“This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.” (emphasis added)

Korey’s father argued that the court lacked jurisdiction to award Korey support after she turned 18, because the marital settlement agreement in the parents’ divorce provided that support terminated when Korey turned 18, the father had fulfilled his contractual support obligation, and Korey failed to bring an independent action for continued support prior to turning 18.

Appeal’s Court Decision

Florida’s Third District Court of Appeal rejected these arguments, and concluded that as long as Korey’s disability existed prior to her reaching age 18, she had the right to bring an independent action against her father for adult dependent support at any time.

“Section 743.07(2) preserves the common law right to seek adult dependent support from a parent in a court of competent jurisdiction when such dependency is the result of a mental or physical incapacity which began prior to such person reaching majority. The circuit court is a court of competent jurisdiction for such a cause of action and the trial court had subject-matter jurisdiction to adjudicate the petition filed by Korey seeking adult dependent support. The trial court erred in dismissing this petition for lack of subject-matter jurisdiction, in denying rehearing, and in awarding attorney’s fees to Adolph [Korey’s father] under section 57.105 upon a finding that the petition was frivolous.”

Fernandez v. Fernandez, 2020 WL 4493410 (Fla. 3d DCA Aug. 5, 2020).

The Fernandez case was decided just one month following an appellate decision in the Fifth District which also addressed adult dependent support. In Skelly v. Skelly, 2020 WL 3886184 (Fla. 5th DCA Jul. 10, 2020), the parties’ adult daughter became physically disabled and incapacitated, and thus dependent upon her parents for support, prior to reaching the age of majority. Just prior to the child’s eighteenth birthday, her mother filed a petition for modification seeking to extend support beyond majority. The court held that the child did not have to be judicially declared incapacitated prior to turning 18 in order to recover adult dependent support. The father was ordered to pay the sum of $2,395 per month in ongoing adult dependent support, and $74,245 in support arrearages that had accrued during the litigation.

Protecting the Most Vulnerable

Adult dependent support is an area of family law that is sometimes overlooked. To be clear, the statute is intended to protect adults who are dependent due to a mental or physical incapacity, so the standard is quite high. The statute is not designed to protect adults who are dependent because they are college students or unemployed.

When the statute does apply, the financial consequences can be significant and can result in a parent having a lifetime legal obligation, in addition to a moral obligation, to support his or her dependent child.

If you should need assistance in this regard, please feel free to contact me to set up a consultation at beth.vogelsang@henlaw.com or by phone at 239-344-1244.