Disability and Emancipation for Purposes of Child Support

disability child emancipation

A significant number of parents have children who have some type of disability, and some of these have such a degree of impairment that the child, upon reaching adulthood, cannot support himself or herself independently.  When these parents are divorced or otherwise not together and one is under an obligation of child support, does this obligation continue past emancipation?  Can it go on indefinitely?

In Missouri, a child becomes emancipated for child support purposes when the child turns eighteen, marries, joins the military or becomes self-supporting by leaving the control of the parents.  But Missouri also recognizes two exceptions that extend support past emancipation.  First, if a child turns eighteen and enrolls in a program of higher education, so long as the child meets certain notice and completion requirement the support obligation continues until age twenty-one.  Second, if the child is physically or mentally incapacitated from supporting himself and insolvent and unmarried, the court may extend the support obligation beyond the eighteenth birthday.

Recently, the Western District of the Missouri Court of Appeals had the chance to examine how these statutory provisions interact.  In Kay v. Keller, father sought to extend the child support obligation of mother for their son who, at the time of the motion, was now 22 years of age.  The son had long suffered with autism, generalized anxiety disorder, bipolar disorder and obsessive compulsive disorder.  He was under the regular care of a psychiatrist and psychologist, unmarried and incapable of supporting himself.  When he was 21, Social Security determined he was totally disabled and unable to support himself through employment.  Mother countered that, because son had attempted college but did not complete, he had automatically become emancipated.

The Western District noted that the provision for extending support for attending college is a separate provision from that extending support for disability.  The Court also noted that a child never automatically emancipates – a parent with a support obligation must petition the court to end support on the basis of emancipation and prove the fact of emancipation, with the other parent having the chance to offer evidence to counter that belief.  So, in this case, even though the son had stopped attending college and had passed the age of 21, he had not automatically become emancipated.  Father could not collect support for the period between the date college attendance stopped or the son turned 21, but he could seek support at any time after alleged emancipation based upon the disability provision.  So long as the disability existed prior to a child’s eighteenth birthday, a parent receiving support may petition to extend that support obligation based on the disability, even if the child is past the age of 21 and support had lapsed.  The reason is simple:  the support obligation is for the benefit of the child, and the legislature intended parents to care for a disabled child rather than become a ward of the state.

So the takeaway from this case is that a diagnosed disability before a child reaches 18 that prevents the child from supporting himself or herself after turning 18 becomes the basis for child support at any time after the child otherwise appears emancipated.

If you have questions about emancipation and disability and child support, contact us – we can help.

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