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Children Are Like Diamonds: Forever. Only, More Expensive 

Children Are Like Diamonds: Forever.  Only, More Expensive: A Primer on California Family Code section 3910(a), the Most Terrifying, Most Common Sense Law You’ve Never Heard Of, but Should Have

Kanye West famously warned, “18 years, 18 years, she got one of your kids, got you for 18 years.”  Kanye was wrong.  It could be way more than 18 years.

Overview of California Family Code section 3910(a)
California Family Code section 3910(a) provides,

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.

Section 3910(a) therefore imposes a joint and several duty on mothers and fathers to support their poor, incapacitated children, no matter how old.  (Tuller v. Superior Court (1932) 215 Cal. 352, 354-355.)  The estates of deceased parents are not immune, as the adult child support obligation imposed by section 3910(a) survives each parent’s death just as it would with a minor child.  (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1163-1164.)

Under section 3910(a), the duty of support arises when a child cannot support himself or herself, and is without other means of support.  The ability of either parent to support the child does not impact the existence of the parent’s or parents’ duty of support.  (Bryant v. Swoap (1975) 48 Cal.App.3d 431, 437.)  Rather, the existence of the duty turns on the child’s means and ability to support himself or herself.  (Id.)  The parent’s or parents’ ability to support the child is only relative to the subsequent question of the amount of support each parent must provide.  (Id.)

Family Code section 3910(a) is a melding of former California Civil Code sections 206 and 242.  Former Civil Code section 206 provided, “It is the duty of the father, the mother, and the children of any person in need who is unable to maintain himself by work, to maintain such person to the extent of their ability.”  Former Civil Code section 242 defined “child” as “a son or daughter under the age of 18 years and a son or daughter of whatever age who is incapacitated from earning a living and without sufficient means.”  Civil Code sections 206 and 242 and Family Code section 3910(a) all derive from Elizabethan Poor Law and codify the (perhaps arguable) moral duty of parents of means to keep their incapacitated, poor, adult children from becoming burdens on society.  (See, e.g., Scott v. Superior Court (1984) 156 Cal.App.3d 577, 582, Chun v. Chun (1987) 190 Cal.App.3d 589, 593-594 and Bryant, 48 Cal.App.3d at 437, and Radich v. Kruly (1964) 2226 Cal.App.2d 683, 686.)

The vehicle to enforce the duty imposed by section 3910(a) is section 4000.  Family Code section 4000 provides,

If a parent has the duty to provide for the support of the parent’s child and willfully fails to so provide, the other parent, or the child by a guardian ad litem, may bring an action against the parent to enforce the duty.

Section 4000 therefore authorizes an adult, disabled child, through a guardian ad litem, to sue his or her parent or parents for support.  Section 4000 also authorizes one parent to sue the other to establish and enforce the duty to support their adult, incapacitated children.

What Does it Mean for a Child to be “Incapacitated from Earning a Living”?
Section 3910(a) sets out one aspect of the adult children it entitles to support with the very broad phrase, “incapacitated form earning a living.”  On its face, this language could mean anything from a vegetative coma, to imprisonment, to post-traumatic stress disorder, and everything and anything in between.  The statute does not distinguish between incapacitating physical, mental, emotional, or other conditions.  It doesn’t seem to matter, nor it is likely to, that the incapacitation arose before or after the child reached the age of majority.  While the courts have done little to narrow the class of children “incapacitated from earning a living” under the statute, they have provided some general guidelines for the analysis.

Unsurprisingly, the party seeking support must present evidence of the child’s inability “to be self-supporting because of a mental or physical disability or…inability to find work because of factors beyond the child’s control.”  (In re Jesse V., (1989) 214 Cal.App.3d 1619, 1632 citing Jones v. Jones (1986) 179 Cal.App.3d 1011, 1014-1015.) The incapacitation can also be temporary, though presumably, the support obligation would end along with the incapacitation. (Rebensdorf v. Rebensdorf (1985) 169 Cal.App.3d 138, 143.)  Finally, it does not appear that the incapacitation must be complete.  Thus, even a child who is able to work part time, or earn some money, may still be incapacitated from earning a living if they are unable to earn a living wage.  (Chun, 190 Cal.App.3d at 592 and In re Marriage of Falk (2003) 2003 WL 22940959 at 2-3 (not officially published).)

Applying these general principles, courts have, at least implicitly, found the following conditions potentially sufficient to render a child incapacitated from earning a living:

•    “autistic disorder, borderline intellectual functioning and though high functioning [with] a history of deficits in social interactions” (Falk, WL 22940959);
•    “chronic schizophrenia, paranoid type” (Drake, 53 Cal.App.4th 1139);
•    emotional disability resulting in 20-year old with emotional maturity of a 12-year old (Chun, 190 Cal.App.3d 589);
•     obligation to attend high school after turning 18 (Rebensdorf, 169 Cal.App.3d 138);
•     extreme disturbance with hyperkineticism and infantile symbiotic psychosis” (In re Marriage of Lieberman (1981) 114 Cal.App.3d 538);
•     “sick and unable to work” (Younger v. Younger (1931) 112 Cal.App. 445);
•    “metal illness” (Levy v. Levy (1966) 245 Cal.App.2d 341);
•    paraplegic as a result of polio (Woolams v. Woolams (1952) 115 Cal.App.2d 1); and,
•     “totally blind invalid” (Paxton v. Paxton (1907) 150 Cal. 667).

Here’s the part that’s particularly scary, or awesome, depending on your perspective:  even though almost all of the above cases involved children whose alleged incapacitation derived from physical or mental causes, there is nothing in the law that says the incapacitation must originate with the child!  (See, Rebensdorf,169 Cal.App.3d 138.)  That is, the child’s circumstances alone may suffice to render the child incapacitated.  Thus, arguably, the parents of a college graduate who, solely because of a lousy job market, cannot find employment providing a full living wage, would be obliged to support that college-educated child under section 3910(a).  “Yikes!”  Or, “Yippie!”  Depending on who you are.

Another point, as of yet unaddressed in the cases, is that the ability of technology to facilitate a child’s earning of a living wage ought to come into play.  That is, given the advent and evolution of computers and associated software and mobility aids, being blind, as an example, isn’t what it once was.  This is by no means intended to marginalize or minimize the challenges faced by the blind or others with physical, emotional or mental limitations or specific needs, it is simply a recognition of the fact that today’s technology should afford a blind person more opportunities for gainful employment than Mr. Paxton had back in 1907.  A court sitting in equity ought, therefore, to take such factors into account when determining whether a child is in fact incapacitated from earning a living.

What Does it Mean for a Child to be “Without Sufficient Means?”
There are two general lines of discussion in the appellate decisions regarding what level of need satisfies the absence of sufficient means requirement.  (Oddly, these cases tend to cite each other.)

On the one hand, there is Drake, which sets forth the general premise that a child lacks sufficient means under section 3910(a) if he or she is likely to become a “public charge.”  (Drake, 53 CalApp.4th at 1154-1155.)  Drake therefore begs the question of what it means for a child to be a “public charge.”  But, alas, “public charge” is undefined under California law.  Even Black’s Law Dictionary wants for a definition.  Perhaps by “public charge” the Drake court really meant “ward of the state,” which Black’s defines as, “A person who is housed by, and receives protection and necessities from, the government.”  (Brian A. Garner, Ed., (2011) Black’s Law Dictionary, 9th Edition, at p. 1720.)  But, given the current lack of public residential facilities in California, such a definition would likely thwart the legislative intent, as it would make it nearly impossible for anyone to satisfy the “without sufficient means” requirement.

A more reasonable interpretation of the “without sufficient means” requirement is set forth in Falk (2003) 2003 WL 22940959 at 3 (not officially published) and Chun.  (Falk, 2003 WL 22940959 at 3 and Chun, 190 Cal.App.3d at 592-596.)  Even though Faulk came after Drake, and Chun came before, both found a duty of support owed to children that were not housed in state-run, residential institutions.  These two cases set out a less dire standard than Drake, under which a child lacks sufficient means if he or she is unable “to be financially self-supporting from sources other than employment.”  (Falk, 2003 WL 22940959 at 3.)  Falkand Chun also reject the argument that a child whose needs are entirely met by the other parent has sufficient means, which is contrary to the standard articulated in Drake.  (Chun, 190 Cal.App.3d at 592-596.)  Further, under Faulk, which is unpublished, and Chun, albeit by implication, the proper analysis exclusively considers the child’s available assets, as opposed to those of the custodial parent or any other individual who uses his or her assets to support the child.  (Id. and Chun, 190 Cal.App.3d at 592-596.)  In the end, because the standard and analysis set forth in Chun and Faulk are more likely to find a duty of support consistent with, and supportive of, the legislative intent behind section 3910(a), application of this standard seems the better option than application of the standard set forth in Drake.

How Much Support Can an Adult, Incapacitated Child Get?
Earlier cases held that the amount of support mandated from each parent should be proportional to each parent’s ability to provide support.  (Woolams, 115 Cal.App.2d 1 and see, Chun, 190 Cal.App.3d at 597-598 and Civil Code section 206.)  More recent authority holds that where one parent has physical responsibility of the child, in the absence of good cause to do otherwise, the support amount is set pursuant to the guidelines in the same manner as support of minor children.  (Drake, 53 CalApp.4th at 1155 and Chun, 190 Cal.App.3d at 596-597.)  The guidelines may not apply, however, if neither parent has physical responsibility for the child.  (Edwards v. Edwards (2008) 162 Cal.App.4th 136, 143.)  In such cases, the fallback position would seem to be proportional support from each parent in accordance with his or her ability to pay.

What if the Parents and Child are Estranged?
Given the nature of at least a class of cases likely to be litigated under section 3910(a), the question arises as to how much support must be provided to an adult child who, perhaps due to the very mental or emotional condition resulting in an inability to support himself or herself, allegedly mistreats one or both parents.  Must such parents support that child despite the mistreatment or abuse, or can the parent avoid the support obligation by arguing something along the lines of an unclean hands defense?  The answer is yes and no.  Although not a complete defense to an otherwise valid support obligation, mistreatment of the parent or parents by the child can, and should, be considered by the courts in setting the level of support.  (See, Radich, 226 Cal.App.2d at 687.)  Thus, where an adult incapacitated-child allegedly mistreated or mistreats one or both parents, the court, sitting in equity, has discretion to obligate the mistreated parent to provide only for the child’s basic needs in order to satisfy the legislative intent of placing that burden on parents rather than society.  (Id.)  But, in such cases, the child need not share in the parent’s or parents’ standard of living.  (Id.)

Who Pays for the Case?
Good, viable cases indicate that the losing parent or parents sued for support of an adult child ought to pay the prevailing child or other parent’s attorney fees and costs.  (Drake, 53 CalApp.4th at 1166-1168, Chun, 190 Cal.App.3d at 598, Paxton, 150 Cal. at 673 and see, Murphy v. Murphy (1925) 71 Cal.App. 389, 392.)  It does not appear to work in the other direction, however.  That is, there is no clear authority in support of the position that a parent who successfully defends a suit under section 3910(a) is entitled to recover his or her attorney fees.  Note also that there is an argument that the defending parent or parents must pay the suing child or other parent’s need-based attorney fees during the course of the action, i.e., pendent lite, in order to allow the child or other parent to maintain suit.  (Drake, 53 CalApp.4th at 1166-1168, Paxton, 150 Cal. at 672, and see, Radich, 226 Cal.App.2d at 688.)

Family Code section 3910(a) imposes a joint and several duty of support on the parent or parents of any adult, incapacitated child that lacks sufficient means to support himself or herself.  Under Family Code section 4000, that duty is enforceable by an action brought either by the child through a guardian ad litem, or by the other parent.  As a society, we should be grateful.  Section 3910(a) should keep us, the taxpayers, from having to support someone via the public rolls, when he or she has a parent or parents with the means to provide the necessary support.

We should also be grateful to section 3910(a) for presenting us with what is quite possibly the best argument yet for thoughtful family planning.

Kanye, you’re welcome.

Summer L. Nastich is an attorney at SmithTrager PC., specializing in environmental law and litigation, remediation projects, regulatory issues, and disputes involving environmental services. She has extensive experience with CERCLA, RCRA, CEQA and state common law claims involving soil and ground water contamination.  She regularlry volunteers with the ACBA Volunteer Legal Services Corporation providing pro bono legal services to low-income residents of Alameda County.