When the parents of children with special needs are divorced, the family court judge may make a child support determination to provide for necessary long-term needs for the support of a minor or adult child with a disability that prevents that child from self-supporting, and that support order can be temporary or indefinite. The First District Court of Appeals, serving the Houston area, recently upheld a trial court’s order of indefinite child support for the care of a cognitively disabled 28-year-old, in the case, Thompson v. Smith, No. 01-15-00010-CV.[i]
The Texas Family Code includes law on the issue of child support for disabled children.
The Texas Family Code provides for court-ordered child support until a child reaches the age of 18, graduates from high school, is emancipated through marriage, dies, or is disabled for an indefinite period.[ii] In determining who will be ordered to pay child support, the court considers the financial ability of each parent, whose rights have not been terminated, to pay support, based on the facts and circumstances in every matter brought before the court by a party seeking court-ordered support. Where the issue of indefinite support arises in connection with a minor or adult child with disability, the court weighs the factors involved in the required care and support for the disabled child.
The court may order support for a disabled child, adult or minor. Either or both parents may be required to pay child support for a disabled child upon the finding that: “(1) 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 (2) the disability exists, or the cause of the disability is known to exist, on or before the 18th birthday of the child.[iii]” When the court orders the payment of child support for a disabled child, the court will also determine which parent or person will have physical custody or guardianship of the child in order to receive support payments, and in some cases the court may order payments directly to a disabled child over the age of 18.
Several factors in Thompson v. Smith were considered by the court in awarding indefinite child support for the parties’ adult child with permanent disabilities.
Mark Thompson and Karen Smith divorced in 1992 when their daughter, J.L., was seven years old. By agreement of parties, Thompson provided child support for J.L. and the parties other children under the standard child support provisions in the Family Code. Smith petitioned the trial court to order Thompson provide support for J.L. in 2013, when J.L. was 28-years-old. “At trial, the evidence showed that at birth, J.L. had a congenital defect that caused the malformation of her jaw and tongue, and aparaxia, a condition caused by brain damage that affects motor skills. In addition, when J.L. was approximately five months old, she suffered an injury; she has been intellectually disabled ever since.[iv]”
The court heard evidence from the parties, determined that J.L. was unable to retain information on a day-to-day basis, and needed supervision and assistance with daily hygiene and several basic life functions. The evidence also proved that J.L. was not able to obtain a driver’s license, prepare meals and her emotional instability made it difficult and impracticable that J.L. would ever be able to maintain basic employment to contribute to her financial needs. In this case, her mother, Smith indicated that she would be J.L.’s primary caregiver and would provide for her needs. In some instances, a child with permanent disabilities will reside at a care facility or with a third-party caregiver, who may receive support payments, when a primary custodial parent is unable to provide necessary care. The court also considered the availability of additional benefits such as Social Security Insurance (SSI) in balancing the availability of financial assistance and J.L.’s needs for support.[v]
After considering the financial ability of Thompson and Smith as well as the availability of SSI benefits, the appellate court reviewed the trial court’s ruling along with the monthly expenses related to J.L.’s basic living expenses and medical bills. The appellate court upheld the trial court’s findings that J.L. was disabled and required care and supervision, and the order for continuing child support was proper.[vi]
The Barrows Firm can provide additional information and resources on temporary and indefinite child support for minor and adult children with disabilities.
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[i] Texas First District Court of Appeals, Thompson v. Smith, No. 01-15-00010-CV, Opinion issued Dec. 17, 2015.
[ii] Tex Fam Code § 154.001, Court-Ordered Child Support
[iii] Tex Fam Code § 154.302, Court-Ordered Support for Disabled Child
[iv] See HNi at page 2/18, Background.
[v] See HNi at page 15/18, Determination of support obligation.
[vi] See HNi at page 17/18, Conclusion.