By: Julie Andrews, Attorney
A few years ago, the legislature passed a law that changed the age of emancipation in Indiana. Children are emancipated at age 19. The legal effect of this is that parents no longer have a legal obligation to financially support children once they attain 19 years of age. But what happens if a parent has a child with a disability? The controlling statute regarding emancipation Indiana Code § 31-16-6-6 which states in relevant part:
(a) The duty to support a child under this chapter, which does not include support for educational needs, ceases when the child becomes nineteen (19) years of age unless any of the following conditions occurs:
(2) The child is incapacitated. In this case the child support continues during the incapacity or until further order of the court.
Child support, or a legal obligation to provide financial support, can continue during the period the child is disabled beyond the age of 19. In order for this to happen, the parent opposing the emancipation has the burden of proving to the Court that the child is incapacitated. This requires more than just being labeled or classified as person with a disability. Receiving educational benefits or state/county aid does not automatically end the inquiry into what incapacitation means in connection with child support and emancipation.
“[I]ncapacity” is defined in caselaw as the “quality or state of being incapable, want of capacity; lack of physical or intellectual power, or of mental or legal qualification; inability; incapable; disability; incompetence.” Liddy v. Liddy, 881 N.E. 2d 62 (Ind.Ct.App. 2008), citing Bole v. Civil City of Ligonier, 161 N.E.2d 189, 194 (Ind. Ct. App. 1959). Incapacity has also been defined in the context of emancipation as “it is clear that no emancipation occurs where due to illness or injury a child becomes so physically or mentally disabled that he cannot provide for himself and must remain at home with a parent.” Baker v. Baker, 488 N.E.2d 361, 366 (Ind.Ct.App.2008) citing Zakrocki v. Zakrocki, 60 N.E.2d 745 (Ind. Ct. App. 1945); see also Caddo v. Caddo, 468 N.E.2d 593, 594 (Ind.Ct.App. 1984).
There are cases where this incapacitation seems obvious such as when a person has an IQ in the moderately mentally retarded range, a person has a physical or psychological disorder that cannot be controlled through y medications and requires frequent hospitalization and when a person has a significant limb impairment. But what about cases that aren’t so obvious such as a person with a learning disability or falling on the evasive autism spectrum? These grayer cases are subject to judicial determination. Judges also have the ability to find that a person is partially emancipated and order some form of child support to continue. Typically, Judges look toward assuring that the person has insurance, where available to the parents.
Does a ‘win’ in court limit available resources?
There are circumstances when a person with a disability could receive more financial assistance through Social Security and other state/county assistance programs if the parents agree that their adult child is emancipated. The existence of a child support order can limit funding to a person who may be incapacitated. A chld support order can also make the adult child ineligible for benefits.
Protecting the best interest of your child
Whenever children are involved in a family law matter the one question that should guide parents is “what is in the best interest of my child?”. Whether you choose to pursue emancipation so that your child could have the opportunity to receive governmental assistance will depend on your unique circumstance. Regardless of your choice, you should seek the assistance of a family law attorney that has experience in complex child support matters. I have a full-service family law practice and have advocated on behalf of my clients for many years in child support, child custody, and related matters.