Florida Senate - 2023                       CS for CS for SB 226
       
       
        
       By the Committees on Children, Families, and Elder Affairs; and
       Judiciary; and Senator Berman
       
       
       
       
       586-02298-23                                           2023226c2
    1                        A bill to be entitled                      
    2         An act relating to support for dependent adult
    3         children; creating s. 61.1255, F.S.; providing
    4         legislative intent; defining the term “dependent adult
    5         child”; requiring that certain rights of the parents
    6         of a dependent adult child be established in a
    7         guardianship proceeding; providing construction;
    8         specifying individuals who may file a suit to
    9         establish support for a dependent adult child;
   10         specifying a timeframe during which such suits may be
   11         filed; providing an exception; specifying procedures
   12         for establishing support; specifying who may receive
   13         such support before and after the dependent adult
   14         child reaches the age of 18; providing construction;
   15         authorizing the court to assign support to certain
   16         trusts established for a dependent adult child;
   17         prohibiting the Department of Revenue from filing
   18         petitions to establish, modify, or enforce certain
   19         support orders; amending s. 61.13, F.S.; conforming a
   20         provision to changes made by the act; specifying that
   21         a child support order does not terminate on the
   22         child’s 18th birthday in certain circumstances;
   23         specifying that a court may modify a child support
   24         order for adult children in certain circumstances;
   25         authorizing either parent to consent to mental health
   26         treatment for a child in certain circumstances unless
   27         stated otherwise in the parenting plan; amending s.
   28         61.29, F.S.; providing that child support guidelines
   29         do not apply to certain cases; amending s. 61.30,
   30         F.S.; conforming a provision to changes made by the
   31         act; creating s. 61.31, F.S.; providing factors a
   32         court must consider when determining the amount of
   33         child support for a dependent adult child; authorizing
   34         a court to assign support to certain trusts
   35         established for a dependent adult child for a
   36         specified purpose; requiring the court to consider
   37         certain state and federal programs and benefits when
   38         making its decisions; prohibiting the court from
   39         ordering support that will cause ineligibility for
   40         certain programs; 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 a person with
   45         disabilities may include certain requests for support
   46         from the person’s parents; providing construction;
   47         amending ss. 742.031 and 742.06, F.S.; conforming
   48         provisions to changes made by the act; creating s.
   49         744.1013, F.S.; assigning jurisdiction over petitions
   50         for support of dependent adult children to the
   51         guardianship court; specifying who may receive such
   52         support for dependent adult children over the age of
   53         18; authorizing a court to assign support to certain
   54         trusts established for a dependent adult child for a
   55         specified purpose; specifying that such support orders
   56         supersede any orders entered under certain other
   57         provisions; amending s. 744.3021, F.S.; conforming
   58         provisions to changes made by the act; creating s.
   59         744.422, F.S.; authorizing a guardian of a dependent
   60         adult child to petition the court for certain support
   61         payments from the dependent adult child’s parents in
   62         certain circumstances; specifying that the amount of
   63         such support is determined pursuant to certain
   64         provisions; providing construction; providing an
   65         effective date.
   66          
   67  Be It Enacted by the Legislature of the State of Florida:
   68  
   69         Section 1. Section 61.1255, Florida Statutes, is created to
   70  read:
   71         61.1255 Support for dependent adult children; legislative
   72  intent; powers of court.—
   73         (1) LEGISLATIVE INTENT.—It is the intent of the Legislature
   74  to:
   75         (a) Codify and clarify existing common law and Florida case
   76  law recognizing that the parents of a dependent adult child have
   77  an obligation to support that child;
   78         (b) Provide procedures for establishing support for a
   79  dependent adult child; and
   80         (c) Provide safeguards, when establishing court-ordered
   81  support for a dependent adult child, to protect and preserve any
   82  means-based government benefits the dependent adult child is
   83  receiving or may be entitled to receive.
   84         (2) POWERS OF COURT.—
   85         (a) For purposes of this section, the term “dependent adult
   86  child” means an unmarried adult who is incapable of self-support
   87  as a result of a physical or mental incapacity that began before
   88  the person reached the age of 18.
   89         (b)The right of a parent or other person to decide where
   90  the dependent adult child will live must be established in a
   91  guardianship proceeding brought under chapter 393 or chapter
   92  744. This paragraph may not be construed to require guardian
   93  advocacy under chapter 393 or a guardianship under chapter 744
   94  or in order for a court to order support for a dependent adult
   95  child.
   96         (c)A suit to establish support for a dependent adult child
   97  may only be filed by one of the following:
   98         1.The dependent adult child or his or her agent under a
   99  durable power of attorney. Any such action must be brought in
  100  the circuit court in the county in which the dependent adult
  101  child resides.
  102         2.A parent or other person on behalf of the dependent
  103  adult child. Any such action must be brought under chapter 393
  104  or chapter 744.
  105         3.The dependent adult child’s guardian advocate appointed
  106  under chapter 393 or guardian appointed under chapter 744, if
  107  the dependent adult child’s right to sue or defend lawsuits has
  108  been removed by the court.
  109         (d)A suit to establish support for a dependent adult child
  110  may be filed at any time after he or she reaches the age of 17
  111  years and 6 months, unless such an order is already in place,
  112  having been established during the child’s minority.
  113         (e)If a court has jurisdiction over the parties because of
  114  an issue of child support, the parents may agree in writing to
  115  provide for dependent adult child support in the existing case
  116  if the agreement is submitted to the court for approval before
  117  the dependent adult child reaches the age of 18. Otherwise, the
  118  amount of support to be paid by one or both parents must be
  119  established in a guardianship proceeding or in a separate
  120  support proceeding in circuit court pursuant to subparagraph
  121  (c)1. This section does not preclude a court from establishing
  122  support, ordering continued support, or enforcing or modifying
  123  support orders established under this chapter.
  124         (f)Support ordered after the dependent adult child reaches
  125  the age of 18 may be paid only to the dependent adult child or
  126  his or her court-appointed guardian advocate, guardian, or agent
  127  under a durable power of attorney. However, the court may
  128  irrevocably assign the support to a special needs trust under 42
  129  U.S.C. s. 1396p(d)(4) or to a pooled trust under 42 U.S.C. s.
  130  1396p(d)(4)(C) established for the dependent adult child by the
  131  dependent adult child, his or her agent under a durable power of
  132  attorney, the court, a parent or grandparent, a guardian, or a
  133  guardian advocate who has been delegated those rights in order
  134  to maintain the dependent adult child’s means-based government
  135  benefits.
  136         (g)The Department of Revenue may not file a petition to
  137  establish, modify, or enforce a support order under this
  138  section.
  139         Section 2. Paragraph (a) of subsection (1) and paragraph
  140  (b) of subsection (2) of section 61.13, Florida Statutes, are
  141  amended to read:
  142         61.13 Support of children; parenting and time-sharing;
  143  powers of court.—
  144         (1)(a) In a proceeding under this chapter, the court may at
  145  any time order either or both parents who owe a duty of support
  146  to a child to pay support to the other parent or, in the case of
  147  both parents, to a third party who has custody in accordance
  148  with the child support guidelines schedule in s. 61.30.
  149         1. All child support orders and income deduction orders
  150  entered on or after October 1, 2010, must provide:
  151         a. For child support to terminate on a child’s 18th
  152  birthday unless the court finds or previously found that the
  153  minor child, or the child who is dependent in fact and between
  154  the ages of 18 and 19, is still in high school and is performing
  155  in good faith with a reasonable expectation of graduation before
  156  he or she reaches the age of 19 s. 743.07(2) applies, or the
  157  continued support is otherwise agreed to by the parties;
  158         b. A schedule, based on the record existing at the time of
  159  the order, stating the amount of the monthly child support
  160  obligation for all the minor children at the time of the order
  161  and the amount of child support that will be owed for any
  162  remaining children after one or more of the children are no
  163  longer entitled to receive child support; and
  164         c. The month, day, and year that the reduction or
  165  termination of child support becomes effective.
  166         2. The court initially entering an order requiring one or
  167  both parents to make child support payments has continuing
  168  jurisdiction after the entry of the initial order to modify the
  169  amount and terms and conditions of the child support payments
  170  if: the modification is found by the court to be in the best
  171  interests of the child; when the child reaches majority; if
  172  there is a substantial change in the circumstances of the
  173  parties; the minor child, or the child who is dependent in fact
  174  and between the ages of 18 and 19, is still in high school and
  175  is performing in good faith with a reasonable expectation of
  176  graduation before he or she reaches the age of 19 if s.
  177  743.07(2) applies; or the when a child is emancipated, marries,
  178  joins the armed services, or dies. The court initially entering
  179  a child support order has continuing jurisdiction to require the
  180  obligee to report to the court on terms prescribed by the court
  181  regarding the disposition of the child support payments.
  182         (2)
  183         (b) A parenting plan approved by the court must, at a
  184  minimum:
  185         1. Describe in adequate detail how the parents will share
  186  and be responsible for the daily tasks associated with the
  187  upbringing of the child;
  188         2. Include the time-sharing schedule arrangements that
  189  specify the time that the minor child will spend with each
  190  parent;
  191         3. Designate who will be responsible for:
  192         a. Any and all forms of health care. If the court orders
  193  shared parental responsibility over health care decisions, the
  194  parenting plan must provide that either parent may consent to
  195  mental health treatment for the child unless stated otherwise in
  196  the parenting plan.
  197         b. School-related matters, including the address to be used
  198  for school-boundary determination and registration.
  199         c. Other activities; and
  200         4. Describe in adequate detail the methods and technologies
  201  that the parents will use to communicate with the child.
  202         Section 3. Section 61.29, Florida Statutes, is amended to
  203  read:
  204         61.29 Child support guidelines; principles; application.—
  205         (1) The following principles establish the public policy of
  206  the State of Florida in the creation of the child support
  207  guidelines:
  208         (a)(1) Each parent has a fundamental obligation to support
  209  his or her minor or legally dependent child.
  210         (b)(2) The guidelines schedule is based on the parent’s
  211  combined net income estimated to have been allocated to the
  212  child as if the parents and children were living in an intact
  213  household.
  214         (c)(3) The guidelines encourage fair and efficient
  215  settlement of support issues between parents and minimizes the
  216  need for litigation.
  217         (2)The guidelines in this section do not apply to support
  218  for a dependent adult child as defined in s. 61.1255. The amount
  219  of support for a dependent adult child is determined by s.
  220  61.31.
  221         Section 4. Paragraph (a) of subsection (1) of section
  222  61.30, Florida Statutes, is amended to read:
  223         61.30 Child support guidelines; retroactive child support.—
  224         (1)(a) The child support guideline amount as determined by
  225  this section presumptively establishes the amount the trier of
  226  fact must shall order as child support for a minor child, or a
  227  child who is dependent in fact and between the ages of 18 and 19
  228  and who is still in high school and is performing in good faith
  229  with a reasonable expectation of graduation before he or she
  230  reaches the age of 19, in an initial proceeding for such support
  231  or in a proceeding for modification of an existing order for
  232  such support, whether the proceeding arises under this or
  233  another chapter. The trier of fact may order payment of child
  234  support which varies, plus or minus 5 percent, from the
  235  guideline amount, after considering all relevant factors,
  236  including the needs of the child or children, age, station in
  237  life, standard of living, and the financial status and ability
  238  of each parent. The trier of fact may order payment of child
  239  support in an amount which varies more than 5 percent from such
  240  guideline amount only upon a written finding explaining why
  241  ordering payment of such guideline amount would be unjust or
  242  inappropriate. Notwithstanding the variance limitations of this
  243  section, the trier of fact must shall order payment of child
  244  support which varies from the guideline amount as provided in
  245  paragraph (11)(b) whenever any of the children are required by
  246  court order or mediation agreement to spend a substantial amount
  247  of time with either parent. This requirement applies to any
  248  living arrangement, whether temporary or permanent.
  249         Section 5. Section 61.31, Florida Statutes, is created to
  250  read:
  251         61.31 Amount of support for a dependent adult child.—
  252         (1)In determining the amount of support to be paid after a
  253  dependent adult child as defined in s. 61.1255 reaches the age
  254  of 18, the specific terms and conditions of such support, and
  255  the rights and duties of both parents with respect to the
  256  support, the court shall determine and give consideration to all
  257  of the following:
  258         (a)The dependent adult child’s income and assets.
  259         (b)Any existing and future needs of the dependent adult
  260  child which are directly related to his or her mental or
  261  physical incapacity and the substantial care and personal
  262  supervision directly required by or related to that incapacity.
  263         (c)Whether a parent or other person pays for or will pay
  264  for the care or supervision of the dependent adult child or
  265  provides or will provide substantial care or personal
  266  supervision to the dependent adult child himself or herself.
  267         (d)The financial resources available to each parent for
  268  the support, care, and supervision of the dependent adult child.
  269         (e)Any other financial resources or other resources or
  270  programs available for the support, care, and supervision of the
  271  dependent adult child.
  272         (2)The court may irrevocably assign the support to a
  273  special needs trust under 42 U.S.C. s. 1396p(d)(4) or to a
  274  pooled trust under 42 U.S.C. s. 1396p(d)(4)(C) established for
  275  the dependent adult child by the dependent adult child, his or
  276  her agent under a durable power of attorney, the court, a parent
  277  or grandparent, a guardian, or a guardian advocate who has been
  278  delegated those rights in order to maintain the dependent adult
  279  child’s means-based government benefits.
  280         (3)In making its decisions, the court shall take into
  281  consideration:
  282         (a) Any state or federal programs and benefits that the
  283  dependent adult child is receiving or may receive due to
  284  reaching the age of majority; and
  285         (b) The effect that the court-ordered support would have on
  286  the dependent adult child’s eligibility for such programs and
  287  benefits.
  288         (4) The court may not order support that will cause
  289  ineligibility for programs in which the dependent adult child
  290  currently participates, or programs and services for which the
  291  dependent adult child is reasonably expected to become eligible
  292  upon reaching the age of majority.
  293         Section 6. Paragraph (b) of subsection (2) and subsection
  294  (3) of section 393.12, Florida Statutes, are amended to read:
  295         393.12 Capacity; appointment of guardian advocate.—
  296         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
  297         (b) A person who is being considered for appointment or is
  298  appointed as a guardian advocate is not required to need not be
  299  represented by an attorney unless required by the court or if
  300  the guardian advocate is delegated any rights regarding property
  301  other than the right to be the representative payee for
  302  government benefits or the right of a parent to receive periodic
  303  payments for the support, care, maintenance, education, or other
  304  needs of the person with a developmental disability. This
  305  paragraph applies only to proceedings relating to the
  306  appointment of a guardian advocate and the court’s supervision
  307  of a guardian advocate and is not an exercise of the
  308  Legislature’s authority under pursuant to s. 2(a), Art. V of the
  309  State Constitution.
  310         (3) PETITION.—
  311         (a) A petition to appoint a guardian advocate for a person
  312  with a developmental disability may be executed by an adult
  313  person who is a resident of this state. The petition must be
  314  verified and must:
  315         1.(a) State the name, age, and present address of the
  316  petitioner and his or her relationship to the person with a
  317  developmental disability;
  318         2.(b) State the name, age, county of residence, and present
  319  address of the person with a developmental disability;
  320         3.(c) Allege that the petitioner believes that the person
  321  needs a guardian advocate and specify the factual information on
  322  which such belief is based;
  323         4.(d) Specify the exact areas in which the person lacks the
  324  decisionmaking ability to make informed decisions about his or
  325  her care and treatment services or to meet the essential
  326  requirements for his or her physical health or safety;
  327         5.(e) Specify the legal disabilities to which the person is
  328  subject; and
  329         6.(f) State the name of the proposed guardian advocate, the
  330  relationship of that person to the person with a developmental
  331  disability; the relationship that the proposed guardian advocate
  332  had or has with a provider of health care services, residential
  333  services, or other services to the person with a developmental
  334  disability; and the reason why this person should be appointed.
  335  The petition must also state if a willing and qualified guardian
  336  advocate cannot be located, the petition shall so state.
  337         (b)A petition to appoint a guardian advocate may include a
  338  request for periodic payments from either or both parents of the
  339  person with a developmental disability for the support, care,
  340  maintenance, education, or other needs of that person pursuant
  341  to s. 61.1255. This section may not be construed to confer any
  342  obligation or duty for a guardian advocate to pursue support for
  343  the person with a developmental disability.
  344         Section 7. Subsection (1) of section 742.031, Florida
  345  Statutes, is amended to read:
  346         742.031 Hearings; court orders for support, hospital
  347  expenses, and attorney attorney’s fee.—
  348         (1) Hearings for the purpose of establishing or refuting
  349  the allegations of the complaint and answer must shall be held
  350  in the chambers and may be restricted to persons, in addition to
  351  the parties involved and their counsel, as the judge in his or
  352  her discretion may direct. The court shall determine the issues
  353  of paternity of the child and the ability of the parents to
  354  support the child. Each party’s social security number must
  355  shall be recorded in the file containing the adjudication of
  356  paternity. If the court finds that the alleged father is the
  357  father of the child, it must shall so order. If appropriate, the
  358  court may shall order the father to pay the complainant, her
  359  guardian, or any other person assuming responsibility for the
  360  child moneys sufficient to pay reasonable attorney attorney’s
  361  fees, hospital or medical expenses, cost of confinement, and any
  362  other expenses incident to the birth of the child and to pay all
  363  costs of the proceeding. Bills for pregnancy, childbirth, and
  364  scientific testing are admissible as evidence without requiring
  365  third-party foundation testimony, and shall constitute prima
  366  facie evidence of amounts incurred for such services or for
  367  testing on behalf of the child. The court shall order either or
  368  both parents owing a duty of support to the child to pay support
  369  under chapter 61 pursuant to s. 61.30. The court must shall
  370  issue, upon motion by a party, a temporary order requiring child
  371  support for a minor child under pursuant to s. 61.30 pending an
  372  administrative or judicial determination of parentage, if there
  373  is clear and convincing evidence of paternity on the basis of
  374  genetic tests or other evidence. The court may also make a
  375  determination of an appropriate parenting plan, including a
  376  time-sharing schedule, in accordance with chapter 61.
  377         Section 8. Section 742.06, Florida Statutes, is amended to
  378  read:
  379         742.06 Jurisdiction retained for future orders.—The court
  380  shall retain jurisdiction of the cause for the purpose of
  381  entering such other and further orders as changing circumstances
  382  of the parties may in justice and equity require. Modifications
  383  of child support and time-sharing are determined under chapter
  384  61.
  385         Section 9. Section 744.1013, Florida Statutes, is created
  386  to read:
  387         744.1013 Jurisdiction for support claims.—The court has
  388  jurisdiction over claims for support of a dependent adult child
  389  as defined in s. 61.1255 and shall adjudicate the financial
  390  obligation, including health insurance, of the dependent adult
  391  child’s parents and enforce the financial obligation as provided
  392  in chapter 61. All support required to be paid in relation to a
  393  dependent adult child over the age of 18 must be paid to the
  394  dependent adult child or his or her court-appointed guardian
  395  advocate, guardian, or agent under a durable power of attorney.
  396  However, the court may irrevocably assign the support to a
  397  special needs trust under 42 U.S.C. s. 1396p(d)(4) or to a
  398  pooled trust under 42 U.S.C. s. 1396p(d)(4)(C) established for
  399  the dependent adult child by the dependent adult child, his or
  400  her agent under a durable power of attorney, the court, a parent
  401  or grandparent, a guardian, or a guardian advocate who has been
  402  delegated those rights in order to maintain the dependent adult
  403  child’s means-based government benefits. Any order for support
  404  entered in a proceeding under this chapter or chapter 393
  405  supersedes any support order entered under chapter 61.
  406         Section 10. Subsection (4) of section 744.3021, Florida
  407  Statutes, is amended to read:
  408         744.3021 Guardians of minors.—
  409         (4) If a petition is filed under pursuant to this section
  410  requesting appointment of a guardian for a minor who is the
  411  subject of any proceeding under chapter 39 or chapter 61 and who
  412  is aged 17 years and 6 months or older, the court division with
  413  jurisdiction over guardianship matters has jurisdiction over the
  414  proceedings under s. 744.331. The alleged incapacitated minor
  415  under this subsection must shall be provided all the due process
  416  rights conferred upon an alleged incapacitated adult under
  417  pursuant to this chapter and applicable court rules. The order
  418  of adjudication under s. 744.331 and the letters of limited or
  419  plenary guardianship may issue upon the minor’s 18th birthday or
  420  as soon thereafter as possible. Any proceeding under pursuant to
  421  this subsection must shall be conducted separately from any
  422  other proceeding.
  423         Section 11. Section 744.422, Florida Statutes, is created
  424  to read:
  425         744.422 Petition for child support for a dependent adult
  426  child.—Pursuant to s. 61.1255, a guardian may petition the court
  427  for an order requiring either or both parents to pay periodic
  428  amounts for the support, care, maintenance, education, and any
  429  other needs of a dependent adult child if not otherwise provided
  430  for in the guardianship plan. The amount of support is
  431  determined pursuant to s. 61.31. This section may not be
  432  construed to confer any obligation or duty for a guardian to
  433  pursue support on behalf of a ward.
  434         Section 12. This act shall take effect July 1, 2023.