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 61.1255 Support 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.