In a previous blog, we discussed the possibility of family court awarding child support for dependent adult children. But can the court also make child custody determinations of a child over the age of 18 if they are still dependent on their parents or other caregivers?
This blog answers that question and explores parents' options for custody or parenting schedule of their dependent adult children.
Although a court has jurisdiction to order child support for a dependent adult child of the marriage, it does not have jurisdiction to make custody orders.
As soon as the child turns 18 years old, all jurisdiction of the court to make custody or parenting schedules terminates. There are no exceptions to this.
The reason is that the child is now seen as an adult with all the freedoms that come with adulthood. Therefore, the court cannot intervene in that child’s legal rights, even if they have physical or developmental disabilities or are dependent on their parents or others.
This is strictly upheld – a family court can’t even order a parent to frequently make the children available to the other parent, or encourage visits with the other parent, as even this is too far in violation of the adult child’s rights.
If a parent wants to be able to determine where and when the dependent adult visits with the other parent (or anyone else for that matter) he or she may file a petition for guardianship or conservatorship in probate court.
Probate court has the jurisdiction to determine who will have responsibility over dependent adults. (In contrast to juvenile or family court, which have jurisdiction to make orders regarding minor children.)
A parent requesting sole or joint guardianship or conservatorship over their dependent adult child must state the reasons why the child needs to be cared for in that way. The reasons might have to do with the child's physical or mental limitations that restrict his or her ability to live independently.
Depending on what level of guardianship or conservatorship the parent obtains, they may be able to determine for the child when and how often they will visit with other people, including the other parent.
To recap: child support for a dependent adult may be ordered in family court, but not custody. Custody and responsibility over a dependent adult may be obtained in probate court.
This creates a problem, however when the family court is attempting to set the adult child support amount. This is because child support is tied to timeshare, or how much time each parent spends with each child. If the court can’t make orders or determine timeshare, then how will it know how much support each parent is to pay?
The court will most likely look to who the child primarily resides with, who spends the most time with the child. The court may also base support on the responsibility each parent has for the child, rather than actual time spent.
This means who transports the child, who takes the child to appointments and maintains the child’s well-being, or who cooks and cleans for the child, etc.
If there is a joint conservatorship, this may mean that responsibility is split between each parent. If the time spent or the time spent with each child is split pretty evenly, then that may indicate an even split of support as well.