Children with severe physical or mental disabilities may require lifetime care and financial support from others in order to survive as adults. Often, such children will continue to reside with and be dependent upon their parents throughout adulthood. But what happens when their parents divorce? What provisions, if any, exist in Georgia for lifetime child support and custodial care of special needs children throughout adulthood? This article will explore those questions.
Georgia law grants trial judges or juries significant latitude to craft appropriate judgments for the support of special needs children during their minority. Although statutory guidelines specify a method of calculation and presumptive payments based on parents’ incomes, those guidelines act only as a minimum basis for determining the amount of child support, to apply as a rebuttable presumption which may be increased or decreased according to the best interest of the child for whom support is being considered and other factors.(1) Those other factors specifically include deviations for extraordinary expenses, such as extraordinary educational expenses, special expenses incurred for child rearing, and extraordinary medical expenses required for children with special needs.(2)
Unfortunately, it appears that Georgia law does not allow a court or jury to make provision in divorce, custody, or other actions for the care or support of a disabled child beyond the child’s age of majority. Each parent generally has a duty to provide for the maintenance, protection, and education of his child only until the earlier of the date on which the child reaches the age of majority, dies, marries, or becomes emancipated.(3) And critically, Georgia’s child support statute further specifies that “[t]he duty to provide support for a minor child shall continue until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs…”(4) The age of majority in this state is eighteen.(5)
Our state’s Supreme Court has held that a court cannot make an exception to the statutory end date for a duty of child support.(6) Only the General Assembly can establish an exception for children who are born disabled and will remain so beyond majority, or who become disabled later in life and remain so after reaching majority.(7)
While it appears that a disabled minor child cannot obtain an order for support beyond the age of majority, such child conceivably may have a right to parental support upon reaching adulthood. The law obligates the father or mother of a pauper (defined as a person who is unable to maintain himself by labor or other sufficient means), if sufficiently able, to support the pauper.(8) Provided that a disabled adult child is completely destitute, he can bring an action on his own, or through a guardian, against a parent or both parents for support; or, if the adult child has received aid from his county of residence, that county can bring an action against the parents to recover for provisions furnished to the adult child.(9)
It seems likely that neither parents nor their minor child can argue during the child’s minority that, absent an order for support beyond the age of majority, the child’s disabilities will render him destitute as an adult. The Georgia Court of Appeals once attempted to hold that parents in a wrongful birth action potentially could recover damages for extraordinary child-rearing expenses beyond their child’s age of majority, if they proved the coincidental period of their and their child’s life expectancies in excess of eighteen years, and if they also proved that the child’s Down’s Syndrome was such that she would otherwise become completely destitute as an adult.(10) Yet, a dissenting judge logically pointed out that no case nor statute on which the majority relied contemplated a present duty to support a potential adult pauper, when the person is still a child.(11) More importantly, the Georgia Supreme Court ultimately reversed the Court of Appeals’ decision, holding that this State does not recognize an action for wrongful birth.(12)
(1) O.C.G.A. § 19-6-15(c)(1).
(2) O.C.G.A. § 19-6-15(i)(2)(J).
(3) O.C.G.A. § 19-7-2.
(4) O.C.G.A. § 19-6-15(e).
(5) O.C.G.A. § 39-1-1(a).
(6) Crane v. Crane, 225 Ga. 605, 607(1), 170 S.E.2d 392 (1969). See also Tuttle v. America First Insurance Co., 187 Ga.App. 68, 369 S.E.2d 342 (1988).
(8) See O.C.G.A. § 36-12-2; O.C.G.A. § 36-12-3.
(9) See Crane, supra, 225 Ga. at 606-607; and O.C.G.A. § 36-12-3.
(10) Atlanta Obstetrics & Gynecology Group v. Abelson, 195 Ga.App. 274, 279(3), 392 S.E.2d 916 (1994).
(11) Id., at 284(3) (Beasley, J., concurring in part and dissenting in part).
(12) Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 719, 398 S.E.2d 557 (1990).