“Child support payments for disabled child” is not a headline we see much, as fortunately it is not an issue most parents need to contend with. Normally in Colorado, support ends at the later of (1) the child’s 19th birthday, or (2) the end of the month following the child’s graduation from high school. See our blog post When Does Child Support End in Colorado for more details, or, for a deeper discussion of this issue, see our Child Support for Disabled Child Over 19 article in the Colorado Family Law Guide.
But what about a child with disabilities who, upon turning 19, is unable to provide for himself? Is child support available for a disabled adult?
The answer is yes. Per Colorado’s child support statute, there is an exception to emancipation, and a family law judge can order child support payments when there are special needs:
“If the child is mentally or physically disabled, the court or the delegate child support enforcement unit may order child support, including payments for medical expenses or insurance or both, to continue beyond the age of nineteen”C.R.S. 14-10-115(13)(a)(II).
Note that use of the term “continue” above – support is only available if the child became disabled prior to emancipating. Should the child become disabled after turning 19, the child support obligation does not “spring back” into effect. See also the Koltay case.
Child Support Payments for Disabled Child Ordered by Trial Court
A recent unpublished decision from the Colorado Court of Appeals addresses both the presumption of emancipation, and the degree of disability required to pay support for disabled adults when the disability occurred prior to emancipation.
In Griffis, the parents had three children, including the eldest Jo.G, who lived with the mother. The father filed a motion to modify child support on the grounds that Jo.G had emancipated by turning 19, so he only owed support for the remaining two children. The mother argued that Jo.G’s child support should continue due to physical disability.
The child was working part-time while in college full-time, but her activities were limited due to rheumatoid arthritis, daily pain, fatigue, and swelling. The family court magistrate found that the child had not emancipated, because she was “partially disabled to a degree that prevented her from being able to independently support herself without assistance from her parents.” Griffis, at ¶ 4 (Cleaned Up).
The father requested review of the magistrate decision by the district judge, which then reversed, finding “clearly erroneous” the magistrate’s finding that the child was incapable of supporting herself. The mother then appealed to the Colorado Court of Appeals, which reversed the district court judge, and reinstated the magistrate finding re: the child’s disability.
Presumption of Emancipation When Child Turns 19
Quoting from Koltay, the appellate court found that the presumption a child emancipates at 19 is because:
“at that age, the child is presumed to possess the physical and mental capabilities to support himself [or herself], to establish his or her own residence, and in general to manage his or her own affairs.”Griffis, at ¶ 11 (Cleaned Up).
However, the presumption does not apply if the child is incapable of supporting herself due to physical or mental disability. ¶ 12.
The father argued that the magistrate failed to apply the presumption of emancipation, however the Court of Appeals disagreed. Though the magistrate did not explicitly state the presumption, the magistrate’s decision recognized that a child generally emancipates at 19, continuing beyond that age when the child is disabled, which means the presumption was applied.
Degree of Disability Needed for Child Support Payments to Disabled Child
Does the child support statute allow for support for a child who is “partially disabled”? The district court judge reversed the magistrate because the term “partial disability” does not appear in the law.
However, while the magistrate found the child was partially disabled:
“Despite the magistrate’s qualifier to Jo.G.’s disability, it was Jo.G.’s inability to support herself ‘by reason of’ her physical disability that formed the basis of the magistrate’s finding. That determination was not contrary to section 14-10-115(13)(a)(II).”Griffis, at ¶ 19 (Cleaned Up).
In short, while the disability may have only been “partial” in the magistrate’s eyes, the effect on the child’s ability to work was sufficient to trigger support payments beyond the age of 19 due to disability. The father also argued that the magistrate erred by finding the child incapable of supporting herself. However, the magistrate decision was supported by the record, including the child herself testifying as to the constant care she needed and the adverse impacts on her life.
As whether a child is disabled to the extent of needing continued child support as an adult is a fact-specific inquiry, the Court of Appeals summarizes the substantial evidence in support of continuing beyond the age of 19:
- The child suffered substantial pain on a daily basis.
- Her extremities had swollen significantly.
- She would not walk, stand, nor sit at a desk for extended periods of time.
- The could not drive a car for more than an hour
- She was incapable of working more than part-time, and even that required accommodations by her employer.
- She had limited mobility, needing the mother’s assistance to go upstairs or get in the shower.
- She needed assistance to administer medications.
- She was extremely fatigued, and had previously quit a college program due to a physical inability to continue it.
- She was morbidly obese.
- Her condition was deteriorating, and some days she could not get out of bed, or even lift her arm to brush her hair.
There are not a lot of appellate cases discussing the level of disability required child support payments for disabled child over 19, so having the facts of this case set out helps to create useful precedent when considering future cases.
The takeaway? While the magistrate may have used the term “partial”, the record shows a child who could not emancipate due to disability, and therefore triggered the statutory requirements for child support payments for disabled children.
Q&A – Support for a Disabled Adults or Children
When does child support end for disabled children?
Although a child in Colorado normally emancipates at age 19, child support payments for a disabled child continue beyond that age when a child is unable to support himself through physical or mental disability, until the child no longer has that condition. For a permanent condition, that means lifetime child support for a disabled child.
Can a parent receive spousal support when you have a disabled child?
Yes. Though Colorado’s alimony statute only explicitly recognizes a parent caring for a child under 30 months as grounds for not working, in reality if the parent is a full-time caregiver for a disabled child, the court is unlikely to impute to that parent an income for spousal support purposes.
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