There is a changing legal landscape with regard to the heavily litigated issue of whether the Court has authority to award a parent child support for a disabled child who is over the age of majority, especially when the court never made a finding of disability when the child was minor.
Previously, the courts in Virginia had a variety of opinions that provided little guidance and clarity on this issue. For example, in 1994, in the case of Frey v. Frey, the Fairfax Circuit Court held the father had the duty to continue providing support for his twenty-two year old disabled child based on the theory that a continuing disability prevents a child from becoming emancipated. Whereas, in 2007, in the case of Smith v. Smith, the court held that it did not have jurisdiction/authority to decide the issue of whether there should be continuing child support, if the continuing support is sought after the child is over the age of majority. This then took another turn in 2009, when the Fairfax Circuit Court decided in Zellman v. Zellman that it had jurisdiction to award child support when the mother filed for continuation of support one month and eighteen days after the support ended.
Finally in January 2014, in the case of Mayer v. Corso-Mayer, the Virginia Court of Appeals upheld the previous ruling that granted continued child support for a parties’ daughter who was over the age of 18 and had completed her GED, since she had numerous disabilities.
Recently, beginning in July 2015, the General Assembly of Virginia changed the law, so now it states:
The court may also order that support be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii), and (iii); (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support.
This new amended version changed the previous statute, which stated:
The court may also order the continuation of that support be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, (ii) and such disability existed prior to the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii), and (iii); (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support.
This small change opens up the possibility of child support being granted for a child over the age of 18, even if there was no prior order entered regarding child support.
In terms of representation on child support issues, the Dua Law Firm has the experience and ability to make sure your interests are served.
