Florida Senate - 2021                                    SB 1432
       
       
        
       By Senator Baxley
       
       
       
       
       
       12-01222A-21                                          20211432__
    1                        A bill to be entitled                      
    2         An act relating to support for dependent adult
    3         children; creating s. 61.1255, F.S.; defining the term
    4         “dependent adult child”; specifying that parents are
    5         responsible for supporting a dependent adult child;
    6         requiring certain rights of the parents of a dependent
    7         adult child to be established in a guardianship
    8         proceeding; prohibiting any person who is not
    9         appointed by the court from managing assets for or
   10         making certain decisions for a dependent adult child;
   11         specifying individuals who may file a suit to
   12         establish support for a dependent adult child;
   13         specifying a timeframe in which such suits may be
   14         filed; providing an exception; specifying procedures
   15         for establishing support; specifying who may receive
   16         such support before and after the dependent adult
   17         child’s 18th birthday; providing for court
   18         jurisdiction; providing construction; specifying to
   19         whom support payments may be made; authorizing a court
   20         to assign support to certain trusts established for a
   21         dependent adult child for a specified purpose;
   22         prohibiting the Department of Revenue from filing
   23         petitions to establish, modify, or enforce certain
   24         support orders; amending s. 61.13, F.S.; specifying
   25         that a child support order need not terminate on the
   26         child’s 18th birthday in certain circumstances;
   27         specifying that a court may modify a child support
   28         order for adult children in certain circumstances;
   29         providing that either parent may consent to mental
   30         health treatment for a child in certain circumstances
   31         unless stated otherwise in the parenting plan;
   32         amending s. 61.29, F.S.; providing that the child
   33         support guidelines do not apply to certain cases;
   34         amending s. 61.30, F.S.; specifying to whom a court
   35         may order child support; creating s. 61.31, F.S.;
   36         providing factors a court must consider when
   37         determining child support for a dependent adult child;
   38         authorizing a court to assign support to certain
   39         trusts established for a dependent adult child for a
   40         specified purpose; amending s. 393.12, F.S.; providing
   41         an additional circumstance under which a guardian
   42         advocate must be represented by an attorney in
   43         guardianship proceedings; specifying that petitions to
   44         appoint a guardian advocate for an individual with
   45         disabilities may include certain requests for support
   46         from the individual’s parents; amending ss. 742.031
   47         and 742.06, F.S.; conforming provisions to changes
   48         made by the act; creating s. 744.1013, F.S.; providing
   49         guardianship courts with jurisdiction over petitions
   50         for support of dependent adult children; specifying
   51         who may receive such support for dependent adult
   52         children over the age of 18; authorizing a court to
   53         assign support to certain trusts established for a
   54         dependent adult child for a specified purpose;
   55         specifying that such support orders supersede any
   56         orders entered under certain other provisions;
   57         amending s. 744.3021, F.S.; conforming provisions to
   58         changes made by the act; creating s. 744.422, F.S.;
   59         authorizing guardians of dependent adults to petition
   60         the court for certain support payments from the
   61         dependent adult’s parents in certain circumstances;
   62         specifying that the amount of such support is
   63         determined by certain provisions; providing an
   64         effective date.
   65          
   66  Be It Enacted by the Legislature of the State of Florida:
   67  
   68         Section 1. Section 61.1255, Florida Statutes, is created to
   69  read:
   70         61.1255Support for dependent adult children; powers of
   71  court.—
   72         (1)For purposes of this section, the term “dependent adult
   73  child” means an unmarried adult who is incapable of self-support
   74  as a result of a physical or mental incapacity that began before
   75  the person attained the age of 18.
   76         (2)The parent or parents of a dependent adult child are
   77  responsible for supporting that child. The right of a parent or
   78  other person to receive and manage support for or manage the
   79  property of a dependent adult child or to make decisions to meet
   80  essential requirements for the health or safety of the dependent
   81  adult child must be established in a guardianship proceeding
   82  under chapter 393 or chapter 744. A parent or other person does
   83  not have the power to manage support for, manage the property
   84  of, or make decisions regarding needs that are essential to the
   85  health and safety of a dependent adult child unless he or she is
   86  appointed as the dependent adult child’s guardian advocate under
   87  chapter 393 or guardian under chapter 744.
   88         (3)The right of a parent or other person to decide where
   89  the dependent adult child will live must be established in a
   90  guardianship proceeding brought under chapter 393 or chapter
   91  744.
   92         (4)A suit to establish support for a dependent adult child
   93  may be filed only by one of the following:
   94         (a)The dependent adult child, if his or her right to sue
   95  or defend lawsuits has not been removed by the court.
   96         (b)A parent or other person on behalf of the dependent
   97  adult child if he or she has not been appointed a guardian
   98  advocate under chapter 393 or a guardian under chapter 744.
   99         (c)The dependent adult child’s guardian advocate appointed
  100  under chapter 393 or guardian appointed under chapter 744.
  101         (5)A suit to establish support for a dependent adult child
  102  may be filed at any time after he or she reaches the age of 17
  103  years and 6 months unless such an order is already in place
  104  which was established during the child’s minority.
  105         (6)If a court has jurisdiction over the parties because of
  106  an issue of child support, the parents may agree in writing to
  107  extend support in the existing case if the agreement is
  108  submitted to the court for approval before the dependent adult
  109  child reaches the age of 18. Otherwise, the amount of support to
  110  be paid by one parent to the other must be established in a
  111  guardianship proceeding or in a separate support proceeding.
  112  This section does not preclude a court from establishing
  113  support, ordering continued support, or enforcing or modifying
  114  support orders established under chapter 61 absent an agreement
  115  by the parents.
  116         (7)Support ordered after the dependent adult child reaches
  117  the age of 18 may be paid only to the dependent adult child or
  118  his or her court-appointed guardian advocate, guardian, or
  119  attorney in fact. However, the court may irrevocably assign the
  120  support to a special needs trust under 42 U.S.C. s. 1396p(d)(4)
  121  or to a pooled trust under 42 U.S.C. s. 1396p(d)(4)(C)
  122  established for the dependent adult child by the dependent adult
  123  child, his or her agent under a durable power of attorney, the
  124  court, a parent or grandparent, or a guardian in order to
  125  maintain the dependent adult child’s means-based government
  126  benefits. The Department of Revenue may not file a petition to
  127  establish, modify, or enforce a support order under this
  128  chapter.
  129         Section 2. Paragraph (a) of subsection (1) and paragraph
  130  (b) of subsection (2) of section 61.13, Florida Statutes, are
  131  amended to read:
  132         61.13 Support of children; parenting and time-sharing;
  133  powers of court.—
  134         (1)(a) In a proceeding under this chapter, the court may at
  135  any time order either or both parents who owe a duty of support
  136  to a child to pay support to the other parent or, in the case of
  137  both parents, to a third party who has custody in accordance
  138  with the child support guidelines schedule in s. 61.30.
  139         1. All child support orders and income deduction orders
  140  entered on or after October 1, 2010, must provide:
  141         a. For child support to terminate on a child’s 18th
  142  birthday unless the court finds or previously found that the
  143  minor child, or the child who is dependent in fact and 18 years
  144  of age, is still in high school and is performing in good faith
  145  with a reasonable expectation of graduation before he or she
  146  reaches the age of 19 s. 743.07(2) applies, or is otherwise
  147  agreed to by the parties;
  148         b. A schedule, based on the record existing at the time of
  149  the order, stating the amount of the monthly child support
  150  obligation for all the minor children at the time of the order
  151  and the amount of child support that will be owed for any
  152  remaining children after one or more of the children are no
  153  longer entitled to receive child support; and
  154         c. The month, day, and year that the reduction or
  155  termination of child support becomes effective.
  156         2. The court initially entering an order requiring one or
  157  both parents to make child support payments has continuing
  158  jurisdiction after the entry of the initial order to modify the
  159  amount and terms and conditions of the child support payments if
  160  the modification is found by the court to be in the best
  161  interests of the child and; when the child reaches majority; if
  162  there is a substantial change in the circumstances of the
  163  parties; if the minor child, or the child who is dependent in
  164  fact and between the ages of 18 and 19, is still in high school
  165  and is performing in good faith with a reasonable expectation of
  166  graduation before he or she reaches the age of 19 s. 743.07(2)
  167  applies; or when a child is emancipated, marries, joins the
  168  armed services, or dies. The court initially entering a child
  169  support order has continuing jurisdiction to require the obligee
  170  to report to the court on terms prescribed by the court
  171  regarding the disposition of the child support payments.
  172         (2)
  173         (b) A parenting plan approved by the court must, at a
  174  minimum:
  175         1. Describe in adequate detail how the parents will share
  176  and be responsible for the daily tasks associated with the
  177  upbringing of the child;
  178         2. Include the time-sharing schedule arrangements that
  179  specify the time that the minor child will spend with each
  180  parent;
  181         3. Designate who will be responsible for:
  182         a. Any and all forms of health care. If the court orders
  183  shared parental responsibility over health care decisions, the
  184  parenting plan must provide that either parent may consent to
  185  mental health treatment for the child unless stated otherwise in
  186  the parenting plan.
  187         b. School-related matters, including the address to be used
  188  for school-boundary determination and registration.
  189         c. Other activities; and
  190         4. Describe in adequate detail the methods and technologies
  191  that the parents will use to communicate with the child.
  192         Section 3. Subsection (4) is added to section 61.29,
  193  Florida Statutes, to read:
  194         61.29 Child support guidelines; principles.—The following
  195  principles establish the public policy of the State of Florida
  196  in the creation of the child support guidelines:
  197         (4) The guidelines do not apply to support for a dependent
  198  adult child as defined in s. 61.1255. The amount of support for
  199  a dependent adult child is determined by s. 61.31.
  200         Section 4. Paragraph (a) of subsection (1) of section
  201  61.30, Florida Statutes, is amended to read:
  202         61.30 Child support guidelines; retroactive child support.—
  203         (1)(a) The child support guideline amount as determined by
  204  this section presumptively establishes the amount the trier of
  205  fact shall order as child support for a minor child, or a child
  206  who is dependent in fact and between the ages of 18 and 19 and
  207  who is still in high school and is performing in good faith with
  208  a reasonable expectation of graduation before he or she reaches
  209  the age of 19, in an initial proceeding for such support or in a
  210  proceeding for modification of an existing order for such
  211  support, whether the proceeding arises under this or another
  212  chapter. The trier of fact may order payment of child support
  213  which varies, plus or minus 5 percent, from the guideline
  214  amount, after considering all relevant factors, including the
  215  needs of the child or children, age, station in life, standard
  216  of living, and the financial status and ability of each parent.
  217  The trier of fact may order payment of child support in an
  218  amount which varies more than 5 percent from such guideline
  219  amount only upon a written finding explaining why ordering
  220  payment of such guideline amount would be unjust or
  221  inappropriate. Notwithstanding the variance limitations of this
  222  section, the trier of fact shall order payment of child support
  223  which varies from the guideline amount as provided in paragraph
  224  (11)(b) whenever any of the children are required by court order
  225  or mediation agreement to spend a substantial amount of time
  226  with either parent. This requirement applies to any living
  227  arrangement, whether temporary or permanent.
  228         Section 5. Section 61.31, Florida Statutes, is created to
  229  read:
  230         61.31 Amount of support for a dependent adult child.—
  231         (1) In determining the amount of support to be paid after a
  232  dependent adult child as defined in s. 61.1255 reaches 18 years
  233  of age, the specific terms and conditions of such support, and
  234  the rights and duties of both parents with respect to the
  235  support, the court shall determine and give special
  236  consideration to all of the following:
  237         (a) The dependent adult child’s income and assets.
  238         (b) Any existing and future needs of the dependent adult
  239  child which are directly related to his or her mental or
  240  physical incapacity and the substantial care and personal
  241  supervision directly required by or related to that incapacity.
  242         (c) Whether a parent pays for or will pay for the care or
  243  supervision of the dependent adult child or provides or will
  244  provide substantial care or personal supervision to the
  245  dependent adult child himself or herself.
  246         (d) The financial resources available to each parent for
  247  the support, care, and supervision of the dependent adult child.
  248         (e) Any other financial resources or other resources or
  249  programs available for the support, care, and supervision of the
  250  dependent adult child.
  251         (2) The court may irrevocably assign the support to a
  252  special needs trust under 42 U.S.C. s. 1396p(d)(4) or to a
  253  pooled trust under 42 U.S.C. s. 1396p(d)(4)(C) established for
  254  the dependent adult child by the dependent adult child, his or
  255  her agent under a durable power of attorney, the court, a parent
  256  or grandparent, or a guardian in order to maintain the dependent
  257  adult child’s means-based government benefits.
  258         (3) In making its decisions, the court must take into
  259  consideration any state or federal programs and benefits that
  260  the dependent adult child is receiving and the effect ordered
  261  support would have on the dependent adult child’s continued
  262  eligibility for such programs and benefits.
  263         Section 6. Paragraph (b) of subsection (2) and subsection
  264  (3) of section 393.12, Florida Statutes, are amended to read:
  265         393.12 Capacity; appointment of guardian advocate.—
  266         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
  267         (b) A person who is being considered for appointment or is
  268  appointed as a guardian advocate does not need to not be
  269  represented by an attorney unless required by the court or if
  270  the guardian advocate is delegated any rights regarding property
  271  other than the right to be the representative payee for
  272  government benefits or the right of a parent to receive periodic
  273  payments for the support, care, maintenance, education, or other
  274  needs of the person with a developmental disability. This
  275  paragraph applies only to proceedings relating to the
  276  appointment of a guardian advocate and the court’s supervision
  277  of a guardian advocate and is not an exercise of the
  278  Legislature’s authority under pursuant to s. 2(a), Art. V of the
  279  State Constitution.
  280         (3) PETITION.—
  281         (a) A petition to appoint a guardian advocate for a person
  282  with a developmental disability may be executed by an adult
  283  person who is a resident of this state. The petition must be
  284  verified and must:
  285         1.(a) State the name, age, and present address of the
  286  petitioner and his or her relationship to the person with a
  287  developmental disability;
  288         2.(b) State the name, age, county of residence, and present
  289  address of the person with a developmental disability;
  290         3.(c) Allege that the petitioner believes that the person
  291  needs a guardian advocate and specify the factual information on
  292  which such belief is based;
  293         4.(d) Specify the exact areas in which the person lacks the
  294  decisionmaking ability to make informed decisions about his or
  295  her care and treatment services or to meet the essential
  296  requirements for his or her physical health or safety;
  297         5.(e) Specify the legal disabilities to which the person is
  298  subject; and
  299         6.(f) State the name of the proposed guardian advocate, the
  300  relationship of that person to the person with a developmental
  301  disability; the relationship that the proposed guardian advocate
  302  had or has with a provider of health care services, residential
  303  services, or other services to the person with a developmental
  304  disability; and the reason why this person should be appointed.
  305  If a willing and qualified guardian advocate cannot be located,
  306  the petition shall so state.
  307         (b) A petition to appoint a guardian advocate may include a
  308  request for periodic payments from either or both parents of the
  309  person with a developmental disability for the support, care,
  310  maintenance, education, or other needs of the person with a
  311  developmental disability.
  312         Section 7. Subsection (1) of section 742.031, Florida
  313  Statutes, is amended to read:
  314         742.031 Hearings; court orders for support, hospital
  315  expenses, and attorney’s fee.—
  316         (1) Hearings for the purpose of establishing or refuting
  317  the allegations of the complaint and answer shall be held in the
  318  chambers and may be restricted to persons, in addition to the
  319  parties involved and their counsel, as the judge in his or her
  320  discretion may direct. The court shall determine the issues of
  321  paternity of the child and the ability of the parents to support
  322  the child. Each party’s social security number shall be recorded
  323  in the file containing the adjudication of paternity. If the
  324  court finds that the alleged father is the father of the child,
  325  it shall so order. If appropriate, the court shall order the
  326  father to pay the complainant, her guardian, or any other person
  327  assuming responsibility for the child moneys sufficient to pay
  328  reasonable attorney attorney’s fees, hospital or medical
  329  expenses, cost of confinement, and any other expenses incident
  330  to the birth of the child and to pay all costs of the
  331  proceeding. Bills for pregnancy, childbirth, and scientific
  332  testing are admissible as evidence without requiring third-party
  333  foundation testimony, and shall constitute prima facie evidence
  334  of amounts incurred for such services or for testing on behalf
  335  of the child. The court shall order either or both parents owing
  336  a duty of support to the child to pay support under chapter 61
  337  pursuant to s. 61.30. The court shall issue, upon motion by a
  338  party, a temporary order requiring child support for a minor
  339  child under pursuant to s. 61.30 pending an administrative or
  340  judicial determination of parentage, if there is clear and
  341  convincing evidence of paternity on the basis of genetic tests
  342  or other evidence. The court may also make a determination of an
  343  appropriate parenting plan, including a time-sharing schedule,
  344  in accordance with chapter 61.
  345         Section 8. Section 742.06, Florida Statutes, is amended to
  346  read:
  347         742.06 Jurisdiction retained for future orders.—The court
  348  shall retain jurisdiction of the cause for the purpose of
  349  entering such other and further orders as changing circumstances
  350  of the parties may in justice and equity require. Modifications
  351  of child support and time-sharing are determined under chapter
  352  61.
  353         Section 9. Section 744.1013, Florida Statutes, is created
  354  to read:
  355         744.1013 Jurisdiction.—The court has jurisdiction over all
  356  claims for support of a dependent adult child as defined in s.
  357  61.1255 and shall adjudicate the financial obligation, including
  358  health insurance, of the dependent adult child’s parents or
  359  guardian and enforce the financial obligation as provided in
  360  chapter 61. All support required to be paid in relation to a
  361  dependent adult child over the age of 18 must be paid to the
  362  dependent adult child or his or her court-appointed guardian
  363  advocate, guardian, or attorney in fact. However, the court may
  364  irrevocably assign the support to a special needs trust under 42
  365  U.S.C. s. 1396p(d)(4) or to a pooled trust under 42 U.S.C. s.
  366  1396p(d)(4)(C) established for the dependent adult child by the
  367  dependent adult child, his or her agent under a durable power of
  368  attorney, the court, a parent or grandparent, or a guardian in
  369  order to maintain the dependent adult child’s means-based
  370  government benefits. Any order for support entered in a
  371  proceeding under this chapter or chapter 393 takes precedence
  372  over any support order entered under chapter 61.
  373         Section 10. Subsection (4) of section 744.3021, Florida
  374  Statutes, is amended to read:
  375         744.3021 Guardians of minors.—
  376         (4) If a petition is filed under pursuant to this section
  377  requesting appointment of a guardian for a minor who is the
  378  subject of any proceeding under chapter 39 or chapter 61 and who
  379  is aged 17 years and 6 months or older, the court division with
  380  jurisdiction over guardianship matters has jurisdiction over the
  381  proceedings under s. 744.331. The alleged incapacitated minor
  382  under this subsection shall be provided all the due process
  383  rights conferred upon an alleged incapacitated adult under
  384  pursuant to this chapter and applicable court rules. The order
  385  of adjudication under s. 744.331 and the letters of limited or
  386  plenary guardianship may issue upon the minor’s 18th birthday or
  387  as soon thereafter as possible. Any proceeding under pursuant to
  388  this subsection shall be conducted separately from any other
  389  proceeding.
  390         Section 11. Section 744.422, Florida Statutes, is created
  391  to read:
  392         744.422 Petition for child support for a dependent adult
  393  child.—Pursuant to s. 61.1255, a guardian may petition the court
  394  for an order requiring either or both parents to pay periodic
  395  amounts for the support, care, maintenance, education, and any
  396  other needs of a dependent adult child if not otherwise provided
  397  for in the guardianship plan. The amount of support is
  398  determined by s. 61.31.
  399         Section 12. This act shall take effect July 1, 2021.