Working Title: "They're Not 'Kids' Anymore, So Should Support Still be Paid?"

Article written by DDC Robert Sech. Please contact DDC Robert Sech regarding the content of this article at 714 347-8126

Much like the plotline of a dime store pulp fiction novel, the majority of court actions in the world of child support are fairly basic. With the occasional exception of a self-employed person's income or the dreaded determination of arrears motion, most hearings require dad's income, mom's income, and the actual amount of visitation taking place, along with a few other factors. Then the judicial officer hits the "Return" key, and the hearing comes to a rather uneventful end. Generally, the same can be said for the cessation of child support. It normally stops at the age of emancipation, and few exceptions apply. Questions begin to arise when a child reaches the age of emancipation and is in one of two categories: Either they are over the age of 18 and a "full-time" high school student, or they reach that age and are "incapacitated" and unable to provide for themselves. How long does child support last? Under what conditions, if any, does it terminate? A closer look at Family Code Sections 3901 and 3910 and the relevant case law yields some answers, but engenders a few questions as well.

Family Code Section 3901

This section provides the following:

  1. The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first.
  2. Nothing in this section limits a parent's ability to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made.

The leading case interpreting this section is In re Marriage of Hubner (2001), 94 Cal.App.4th 175, a 4th District court of appeals opinion. Hubner involved a student from an Orange County high school who spent a semester as a foreign exchange student in Japan. He was required to attend classes in Japan six days per week. Although the courses were typical high school classes and counted as credit toward the student's high school diploma, the child's attendance in this program caused a delay in his "regular" high school studies. He remained in high school beyond his 18th birthday and beyond his normal graduation date. The child's father argued that he should not be responsible for the additional period of child support.

Though the court did not define the parameters of a "full-time high school student", it did include two vital points in its ruling. First, a student is not required to demonstrate that he or she is making a good faith effort to complete high school as soon as possible. Second, the statute does not condition a parent's duty of support on a child's participation in only those classes that are necessary for graduation. The court noted that potential abuses of this were foreseen as the legislature implemented an absolute cutoff at age 19, regardless of a child's educational status. In a separate appeal regarding the same two parties, (see In re Marriage of Hubner [2004], 124 Cal.App. 4th 1082) the court of appeals made further findings on this issue. The father claimed that he owed no duty of support to his son past the age of 18 because the custodial parent mother produced no proof that the child satisfied the various conditions for continued support. The court was unmoved. It stated "Monthly proof a child is still unmarried, or is still not self-supporting, or is still unemancipated, or is still attending high school or the like in order to trigger that month's child support obligation is not a prerequisite to entitlement to child support beyond the age of 18, or at any other age." In elaborating on its reasoning, the court stated that such a requirement would be "unworkable" and would "place a needlessly heavy burden" on payee parents. The court also noted that the legislature enacted no such rule, thus leaving the payee parent with only one duty: Notification must be given to the payor parent upon the happening of a condition which terminates support.

In this case, Mr. Hubner did not raise the issue prior to the hearing at the trial court level and did not inquire of the mother or her counsel to ascertain if any of the conditions which would terminate support had actually occurred. Admittedly, Hubner's ruling involves a very specific set of facts: A diligent honor student involved in a prestigious exchange program with classes that would count toward a high school diploma. There is no clarification if the ruling extends toward such things as "continuation schools," post-high school correspondence courses, or G.E.D. programs. All that is required for continued support is a child over the age of 18 (who has not yet attained the age of 19) who is a "full-time high school student".

Family Code Section 3910

This section provides the following:

  1. The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.
  2. Nothing in this section limited the duty of support under Sections 3900 and 3901.

The substance of what is now Family Code section 3910 was, for years, encapsulated within Civil Code Section 206. When applying 3910, the court examines whether or not to extend child support beyond the age of 18 for a child who is unable to provide for himself or herself and will likely not be able to for some time. Unlike 3901, 3910 has no time limit, and support can continue until a child is capable of providing for himself or herself, if ever. The language in case law leans toward examining the legislature's intent in creating the statute; namely, that the public be shielded from the burden of supporting a person who has a parent able to support him or her. This path of inquiry can be seen in the case of Adamoli v. Drake, (1997), 53 Cal.App.4 th 1139 and Chun v. Chun (1987), 190 Cal.App.3d 589.

Though the cases involve circumstances which differ widely from one another, the courts follow an almost identical line of reasoning when ruling on the continuance of a child support obligation past the age of majority. This also serves to underscore the similarities of the former Civil Code Section 206 and the current Family Code Section 3910. The Adamoli decision was issued in 1997, three years after the 1994 arrival of 3910. It involved a son who lived primarily with his mother after the parties divorced. In its ruling, the court's first step on the issue was to separate the issue of money from obligation. While a person's ability to discern whether a child is "incapacitated" or not may be a fairly rudimentary inquiry, the ability to ascertain whether that child is "without sufficient means" can be a bit murkier. The court attempted some clarification, and protecting the public from the burden of supporting a child is paramount in their reasoning. "Although no court has interpreted the term ‘without sufficient means', we observe that a parent's duty to support an adult child does not only arise when the child would otherwise be ‘turned into the street'". The court then drew a line for future reference, placing a bright line balancing test in place by declaring that "without sufficient means" should be resolved in terms of the likelihood that a child will become a public charge. The court then declared that there were enough solid facts to conclude that the son could not rely solely on a trust established for his benefit as the trust assets were not sufficient for his continued care.

Consequently, the court found that the father should continue paying support for his son. Chun, which was cited repeatedly by the court in its decision in Adamoli, (in fact, the phrase "turned into the street" was pulled directly from Mrs. Chun's testimony), involved an adult with the emotional maturity of a 12 year-old child. Academically, Mrs. Chun's daughter (Lisa) performed at the level of a 5th to 7th grader. As emotionally disturbed as Lisa was, the trial court was presented evidence that her treating psychologist hoped that she could someday work in a "sheltered workshop" under "close supervision". Lisa was cared for exclusively by her mother. Her father, a wealthy physician, claimed on appeal that he should not continue paying support. In doing so, her father felt the stouthearted pledge of support from Lisa's mother had the legal effect of excusing him from the continued support of his disabled daughter. The court's holding was rendered in the context of Civil Code Section 206, which was the governing statute at the time. Yet the rationale in the court's ruling is remarkably similar to that in Adamoli. The court continued by stating in essence that support from both parents, who were able to provide financial support, was necessary to keep Lisa from becoming the responsibility of the California taxpayers.