Florida Senate - 2023                              CS for SB 226
       
       
        
       By the Committee on Judiciary; and Senator Berman
       
       
       
       
       
       590-02024-23                                           2023226c1
    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 their dependent adult
    6         child; requiring that certain rights of the parents of
    7         a dependent adult child be established in a
    8         guardianship proceeding; specifying individuals who
    9         may file a suit to establish support for a dependent
   10         adult child; specifying a timeframe during which such
   11         suits may be filed; providing an exception; specifying
   12         procedures for establishing support; specifying who
   13         may receive such support before and after the
   14         dependent adult child reaches the age of 18; providing
   15         construction; authorizing the court to assign support
   16         to certain trusts established for a dependent adult
   17         child; prohibiting the Department of Revenue from
   18         filing petitions to establish, modify, or enforce
   19         certain support orders; amending s. 61.13, F.S.;
   20         conforming a provision to changes made by the act;
   21         specifying that a child support order does not
   22         terminate on the child’s 18th birthday in certain
   23         circumstances; specifying that a court may modify a
   24         child support order for adult children in certain
   25         circumstances; authorizing either parent to consent to
   26         mental health treatment for a child in certain
   27         circumstances unless stated otherwise in the parenting
   28         plan; amending s. 61.29, F.S.; providing that child
   29         support guidelines do not apply to certain cases;
   30         amending s. 61.30, F.S.; conforming a provision to
   31         changes made by the act; creating s. 61.31, F.S.;
   32         providing factors a court must consider when
   33         determining the amount of child support for a
   34         dependent adult child; authorizing a court to assign
   35         support to certain trusts established for a dependent
   36         adult child for a specified purpose; requiring the
   37         court to consider certain state and federal programs
   38         and benefits when making its decisions; amending s.
   39         393.12, F.S.; providing an additional circumstance
   40         under which a guardian advocate must be represented by
   41         an attorney in guardianship proceedings; specifying
   42         that petitions to appoint a guardian advocate for a
   43         person with disabilities may include certain requests
   44         for support from the person’s parents; amending ss.
   45         742.031 and 742.06, F.S.; conforming provisions to
   46         changes made by the act; creating s. 744.1013, F.S.;
   47         assigning jurisdiction over petitions for support of
   48         dependent adult children to the guardianship court;
   49         specifying who may receive such support for dependent
   50         adult children over the age of 18; authorizing a court
   51         to assign support to certain trusts established for a
   52         dependent adult child for a specified purpose;
   53         specifying that such support orders supersede any
   54         orders entered under certain other provisions;
   55         amending s. 744.3021, F.S.; conforming provisions to
   56         changes made by the act; creating s. 744.422, F.S.;
   57         authorizing a guardian of a dependent adult child to
   58         petition the court for certain support payments from
   59         the dependent adult child’s parents in certain
   60         circumstances; specifying that the amount of such
   61         support is determined pursuant to certain provisions;
   62         providing an effective date.
   63          
   64  Be It Enacted by the Legislature of the State of Florida:
   65  
   66         Section 1. Section 61.1255, Florida Statutes, is created to
   67  read:
   68         61.1255 Support for dependent adult children; powers of
   69  court.—
   70         (1)For purposes of this section, the term “dependent adult
   71  child” means an unmarried adult who is incapable of self-support
   72  as a result of a physical or mental incapacity that began before
   73  the person reached the age of 18.
   74         (2)The parents of a dependent adult child are responsible
   75  for supporting that child.
   76         (3)The right of a parent or other person to decide where
   77  the dependent adult child will live must be established in a
   78  guardianship proceeding brought under chapter 393 or chapter
   79  744.
   80         (4)A suit to establish support for a dependent adult child
   81  may only be filed by one of the following:
   82         (a)The dependent adult child or his or her agent under a
   83  durable power of attorney, if the dependent adult childs right
   84  to sue or defend lawsuits has not been removed by the court. Any
   85  such action must be brought in the circuit court in the county
   86  in which the child resides.
   87         (b)A parent or other person on behalf of the dependent
   88  adult child. Any such action must be brought under chapter 393
   89  or chapter 744.
   90         (c)The dependent adult child’s guardian advocate appointed
   91  under chapter 393 or guardian appointed under chapter 744.
   92         (5)A suit to establish support for a dependent adult child
   93  may be filed at any time after he or she reaches the age of 17
   94  years and 6 months, unless such an order is already in place,
   95  having been established during the child’s minority.
   96         (6)If a court has jurisdiction over the parties because of
   97  an issue of child support, the parents may agree in writing to
   98  extend support in the existing case if the agreement is
   99  submitted to the court for approval before the dependent adult
  100  child reaches the age of 18. Otherwise, the amount of support to
  101  be paid by one parent to the other must be established in a
  102  guardianship proceeding or in a separate support proceeding in
  103  circuit court pursuant to paragraph (4)(a). This section does
  104  not preclude a court from establishing support, ordering
  105  continued support, or enforcing or modifying support orders
  106  established under this chapter absent an agreement by the
  107  parents.
  108         (7)Support ordered after the dependent adult child reaches
  109  the age of 18 may be paid only to the dependent adult child or
  110  his or her court-appointed guardian advocate, guardian, or agent
  111  under a durable power of attorney. However, the court may
  112  irrevocably assign the support to a special needs trust under 42
  113  U.S.C. s. 1396p(d)(4) or to a pooled trust under 42 U.S.C. s.
  114  1396p(d)(4)(C) established for the dependent adult child by the
  115  dependent adult child, his or her agent under a durable power of
  116  attorney, the court, a parent or grandparent, a guardian, or a
  117  guardian advocate who has been delegated those rights in order
  118  to maintain the dependent adult child’s means-based government
  119  benefits.
  120         (8)The Department of Revenue may not file a petition to
  121  establish, modify, or enforce a support order under this
  122  section.
  123         Section 2. Paragraph (a) of subsection (1) and paragraph
  124  (b) of subsection (2) of section 61.13, Florida Statutes, are
  125  amended to read:
  126         61.13 Support of children; parenting and time-sharing;
  127  powers of court.—
  128         (1)(a) In a proceeding under this chapter, the court may at
  129  any time order either or both parents who owe a duty of support
  130  to a child to pay support to the other parent or, in the case of
  131  both parents, to a third party who has custody in accordance
  132  with the child support guidelines schedule in s. 61.30.
  133         1. All child support orders and income deduction orders
  134  entered on or after October 1, 2010, must provide:
  135         a. For child support to terminate on a child’s 18th
  136  birthday unless the court finds or previously found that the
  137  minor child, or the child who is dependent in fact and between
  138  the ages of 18 and 19, is still in high school and is performing
  139  in good faith with a reasonable expectation of graduation before
  140  he or she reaches the age of 19 s. 743.07(2) applies, or the
  141  continued support is otherwise agreed to by the parties;
  142         b. A schedule, based on the record existing at the time of
  143  the order, stating the amount of the monthly child support
  144  obligation for all the minor children at the time of the order
  145  and the amount of child support that will be owed for any
  146  remaining children after one or more of the children are no
  147  longer entitled to receive child support; and
  148         c. The month, day, and year that the reduction or
  149  termination of child support becomes effective.
  150         2. The court initially entering an order requiring one or
  151  both parents to make child support payments has continuing
  152  jurisdiction after the entry of the initial order to modify the
  153  amount and terms and conditions of the child support payments
  154  if: the modification is found by the court to be in the best
  155  interests of the child; when the child reaches majority; if
  156  there is a substantial change in the circumstances of the
  157  parties; the minor child, or the child who is dependent in fact
  158  and between the ages of 18 and 19, is still in high school and
  159  is performing in good faith with a reasonable expectation of
  160  graduation before he or she reaches the age of 19 if s.
  161  743.07(2) applies; or the when a child is emancipated, marries,
  162  joins the armed services, or dies. The court initially entering
  163  a child support order has continuing jurisdiction to require the
  164  obligee to report to the court on terms prescribed by the court
  165  regarding the disposition of the child support payments.
  166         (2)
  167         (b) A parenting plan approved by the court must, at a
  168  minimum:
  169         1. Describe in adequate detail how the parents will share
  170  and be responsible for the daily tasks associated with the
  171  upbringing of the child;
  172         2. Include the time-sharing schedule arrangements that
  173  specify the time that the minor child will spend with each
  174  parent;
  175         3. Designate who will be responsible for:
  176         a. Any and all forms of health care. If the court orders
  177  shared parental responsibility over health care decisions, the
  178  parenting plan must provide that either parent may consent to
  179  mental health treatment for the child unless stated otherwise in
  180  the parenting plan.
  181         b. School-related matters, including the address to be used
  182  for school-boundary determination and registration.
  183         c. Other activities; and
  184         4. Describe in adequate detail the methods and technologies
  185  that the parents will use to communicate with the child.
  186         Section 3. Section 61.29, Florida Statutes, is amended to
  187  read:
  188         61.29 Child support guidelines; principles; application.—
  189         (1) The following principles establish the public policy of
  190  the State of Florida in the creation of the child support
  191  guidelines:
  192         (a)(1) Each parent has a fundamental obligation to support
  193  his or her minor or legally dependent child.
  194         (b)(2) The guidelines schedule is based on the parent’s
  195  combined net income estimated to have been allocated to the
  196  child as if the parents and children were living in an intact
  197  household.
  198         (c)(3) The guidelines encourage fair and efficient
  199  settlement of support issues between parents and minimizes the
  200  need for litigation.
  201         (2)The guidelines in this section do not apply to support
  202  for a dependent adult child as defined in s. 61.1255. The amount
  203  of support for a dependent adult child is determined by s.
  204  61.31.
  205         Section 4. Paragraph (a) of subsection (1) of section
  206  61.30, Florida Statutes, is amended to read:
  207         61.30 Child support guidelines; retroactive child support.—
  208         (1)(a) The child support guideline amount as determined by
  209  this section presumptively establishes the amount the trier of
  210  fact must shall order as child support for a minor child, or a
  211  child who is dependent in fact and between the ages of 18 and 19
  212  and who is still in high school and is performing in good faith
  213  with a reasonable expectation of graduation before he or she
  214  reaches the age of 19, in an initial proceeding for such support
  215  or in a proceeding for modification of an existing order for
  216  such support, whether the proceeding arises under this or
  217  another chapter. The trier of fact may order payment of child
  218  support which varies, plus or minus 5 percent, from the
  219  guideline amount, after considering all relevant factors,
  220  including the needs of the child or children, age, station in
  221  life, standard of living, and the financial status and ability
  222  of each parent. The trier of fact may order payment of child
  223  support in an amount which varies more than 5 percent from such
  224  guideline amount only upon a written finding explaining why
  225  ordering payment of such guideline amount would be unjust or
  226  inappropriate. Notwithstanding the variance limitations of this
  227  section, the trier of fact must shall order payment of child
  228  support which varies from the guideline amount as provided in
  229  paragraph (11)(b) whenever any of the children are required by
  230  court order or mediation agreement to spend a substantial amount
  231  of time with either parent. This requirement applies to any
  232  living arrangement, whether temporary or permanent.
  233         Section 5. Section 61.31, Florida Statutes, is created to
  234  read:
  235         61.31 Amount of support for a dependent adult child.—
  236         (1)In determining the amount of support to be paid after a
  237  dependent adult child as defined in s. 61.1255 reaches the age
  238  of 18, the specific terms and conditions of such support, and
  239  the rights and duties of both parents with respect to the
  240  support, the court shall determine and give consideration to all
  241  of the following:
  242         (a)The dependent adult child’s income and assets.
  243         (b)Any existing and future needs of the dependent adult
  244  child which are directly related to his or her mental or
  245  physical incapacity and the substantial care and personal
  246  supervision directly required by or related to that incapacity.
  247         (c)Whether a parent pays for or will pay for the care or
  248  supervision of the dependent adult child or provides or will
  249  provide substantial care or personal supervision to the
  250  dependent adult child himself or herself.
  251         (d)The financial resources available to each parent for
  252  the support, care, and supervision of the dependent adult child.
  253         (e)Any other financial resources or other resources or
  254  programs available for the support, care, and supervision of the
  255  dependent adult child.
  256         (2)The court may irrevocably assign the support to a
  257  special needs trust under 42 U.S.C. s. 1396p(d)(4) or to a
  258  pooled trust under 42 U.S.C. s. 1396p(d)(4)(C) established for
  259  the dependent adult child by the dependent adult child, his or
  260  her agent under a durable power of attorney, the court, a parent
  261  or grandparent, a guardian, or a guardian advocate who has been
  262  delegated those rights in order to maintain the dependent adult
  263  child’s means-based government benefits.
  264         (3)In making its decisions, the court shall take into
  265  consideration any state or federal programs and benefits that
  266  the dependent adult child is receiving and the effect that the
  267  court-ordered support would have on the dependent adult child’s
  268  continued eligibility for such programs and benefits.
  269         Section 6. Paragraph (b) of subsection (2) and subsection
  270  (3) of section 393.12, Florida Statutes, are amended to read:
  271         393.12 Capacity; appointment of guardian advocate.—
  272         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
  273         (b) A person who is being considered for appointment or is
  274  appointed as a guardian advocate is not required to need not be
  275  represented by an attorney unless required by the court or if
  276  the guardian advocate is delegated any rights regarding property
  277  other than the right to be the representative payee for
  278  government benefits or the right of a parent to receive periodic
  279  payments for the support, care, maintenance, education, or other
  280  needs of the person with a developmental disability. This
  281  paragraph applies only to proceedings relating to the
  282  appointment of a guardian advocate and the court’s supervision
  283  of a guardian advocate and is not an exercise of the
  284  Legislature’s authority under pursuant to s. 2(a), Art. V of the
  285  State Constitution.
  286         (3) PETITION.—
  287         (a) A petition to appoint a guardian advocate for a person
  288  with a developmental disability may be executed by an adult
  289  person who is a resident of this state. The petition must be
  290  verified and must:
  291         1.(a) State the name, age, and present address of the
  292  petitioner and his or her relationship to the person with a
  293  developmental disability;
  294         2.(b) State the name, age, county of residence, and present
  295  address of the person with a developmental disability;
  296         3.(c) Allege that the petitioner believes that the person
  297  needs a guardian advocate and specify the factual information on
  298  which such belief is based;
  299         4.(d) Specify the exact areas in which the person lacks the
  300  decisionmaking ability to make informed decisions about his or
  301  her care and treatment services or to meet the essential
  302  requirements for his or her physical health or safety;
  303         5.(e) Specify the legal disabilities to which the person is
  304  subject; and
  305         6.(f) State the name of the proposed guardian advocate, the
  306  relationship of that person to the person with a developmental
  307  disability; the relationship that the proposed guardian advocate
  308  had or has with a provider of health care services, residential
  309  services, or other services to the person with a developmental
  310  disability; and the reason why this person should be appointed.
  311  The petition must also state if a willing and qualified guardian
  312  advocate cannot be located, the petition shall so state.
  313         (b)A petition to appoint a guardian advocate may include a
  314  request for periodic payments from either or both parents of the
  315  person with a developmental disability for the support, care,
  316  maintenance, education, or other needs of that person.
  317         Section 7. Subsection (1) of section 742.031, Florida
  318  Statutes, is amended to read:
  319         742.031 Hearings; court orders for support, hospital
  320  expenses, and attorney attorney’s fee.—
  321         (1) Hearings for the purpose of establishing or refuting
  322  the allegations of the complaint and answer must shall be held
  323  in the chambers and may be restricted to persons, in addition to
  324  the parties involved and their counsel, as the judge in his or
  325  her discretion may direct. The court shall determine the issues
  326  of paternity of the child and the ability of the parents to
  327  support the child. Each party’s social security number must
  328  shall be recorded in the file containing the adjudication of
  329  paternity. If the court finds that the alleged father is the
  330  father of the child, it must shall so order. If appropriate, the
  331  court may shall order the father to pay the complainant, her
  332  guardian, or any other person assuming responsibility for the
  333  child moneys sufficient to pay reasonable attorney attorney’s
  334  fees, hospital or medical expenses, cost of confinement, and any
  335  other expenses incident to the birth of the child and to pay all
  336  costs of the proceeding. Bills for pregnancy, childbirth, and
  337  scientific testing are admissible as evidence without requiring
  338  third-party foundation testimony, and shall constitute prima
  339  facie evidence of amounts incurred for such services or for
  340  testing on behalf of the child. The court shall order either or
  341  both parents owing a duty of support to the child to pay support
  342  under chapter 61 pursuant to s. 61.30. The court must shall
  343  issue, upon motion by a party, a temporary order requiring child
  344  support for a minor child under pursuant to s. 61.30 pending an
  345  administrative or judicial determination of parentage, if there
  346  is clear and convincing evidence of paternity on the basis of
  347  genetic tests or other evidence. The court may also make a
  348  determination of an appropriate parenting plan, including a
  349  time-sharing schedule, in accordance with chapter 61.
  350         Section 8. Section 742.06, Florida Statutes, is amended to
  351  read:
  352         742.06 Jurisdiction retained for future orders.—The court
  353  shall retain jurisdiction of the cause for the purpose of
  354  entering such other and further orders as changing circumstances
  355  of the parties may in justice and equity require. Modifications
  356  of child support and time-sharing are determined under chapter
  357  61.
  358         Section 9. Section 744.1013, Florida Statutes, is created
  359  to read:
  360         744.1013 Jurisdiction for support claims.—The court has
  361  jurisdiction over claims for support of a dependent adult child
  362  as defined in s. 61.1255 and shall adjudicate the financial
  363  obligation, including health insurance, of the dependent adult
  364  child’s parents and enforce the financial obligation as provided
  365  in chapter 61. All support required to be paid in relation to a
  366  dependent adult child over the age of 18 must be paid to the
  367  dependent adult child or his or her court-appointed guardian
  368  advocate, guardian, or agent under a durable power of attorney.
  369  However, the court may irrevocably assign the support to a
  370  special needs trust under 42 U.S.C. s. 1396p(d)(4) or to a
  371  pooled trust under 42 U.S.C. s. 1396p(d)(4)(C) established for
  372  the dependent adult child by the dependent adult child, his or
  373  her agent under a durable power of attorney, the court, a parent
  374  or grandparent, a guardian, or a guardian advocate who has been
  375  delegated those rights in order to maintain the dependent adult
  376  child’s means-based government benefits. Any order for support
  377  entered in a proceeding under this chapter or chapter 393
  378  supersedes any support order entered under chapter 61.
  379         Section 10. Subsection (4) of section 744.3021, Florida
  380  Statutes, is amended to read:
  381         744.3021 Guardians of minors.—
  382         (4) If a petition is filed under pursuant to this section
  383  requesting appointment of a guardian for a minor who is the
  384  subject of any proceeding under chapter 39 or chapter 61 and who
  385  is aged 17 years and 6 months or older, the court division with
  386  jurisdiction over guardianship matters has jurisdiction over the
  387  proceedings under s. 744.331. The alleged incapacitated minor
  388  under this subsection must shall be provided all the due process
  389  rights conferred upon an alleged incapacitated adult under
  390  pursuant to this chapter and applicable court rules. The order
  391  of adjudication under s. 744.331 and the letters of limited or
  392  plenary guardianship may issue upon the minor’s 18th birthday or
  393  as soon thereafter as possible. Any proceeding under pursuant to
  394  this subsection must shall be conducted separately from any
  395  other proceeding.
  396         Section 11. Section 744.422, Florida Statutes, is created
  397  to read:
  398         744.422 Petition for child support for a dependent adult
  399  child.—Pursuant to s. 61.1255, a guardian may petition the court
  400  for an order requiring either or both parents to pay periodic
  401  amounts for the support, care, maintenance, education, and any
  402  other needs of a dependent adult child if not otherwise provided
  403  for in the guardianship plan. The amount of support is
  404  determined pursuant to s. 61.31.
  405         Section 12. This act shall take effect July 1, 2023.