trAnsitioningspeCiAlneedsCHildrenoutoffAmilylAwCourt
Marital & Family law Section Chair : ShirinRustomji – ShirinRustomji , P . A .
parentsofspecialneeds childrendonotstop co-parentingwhentheir childturnseighteen .
Parents of special needs children do not stop co-parenting when their child turns eighteen . As practitioners , we can better serve our clients if we contemplate the challenges they may face .
1 . Will the child require a Guardian , and if so , who will serve ? Parents of special needs children may need a guardianship over their child . If the adult child lacks decision-making ability to make some or all the decisions necessary to care for their person or property , each parent could petition to be the appointed Guardian . 1 Practice Tip : Parents can agree ahead of time if one parent will act alone as Guardian , or together as Co-Guardians . If the parties cannot agree , the guardianship court must consider the best interest of the ward .
2 . Where will the adult child live if they cannot live independently ? The Family Law Court loses subject matter jurisdiction to determine timesharing when a child turns eighteen . 2 There is no statutory authority which permits the Guardianship Court to order parental visits with the adult child . Florida Statute Section
744.3715 does permit a family member to challenge limited or prohibited contact with the Ward . Practice tip : In the Parenting Plan , consider adding language that acknowledges the child may be unable to live independently beyond the age of majority , and the parties intend to continue this timesharing schedule . Furthermore , state their intention to introduce this agreement in any subsequent guardianship proceeding .
3 . What about Exceptional Student Education ( ESE )? Only one parent ’ s permission is required for the school to perform evaluations on a child to determine ESE eligibility . 3 Practice Tip : In the Parenting Plan , designate who will make future education decisions between the child reaching age eighteen and the appointment of a guardian , if necessary .
4 . Will the child require child support beyond the age of majority ? Child support can be ordered by the family law court to extend beyond age eighteen so long as a determination for the need of support is adjudicated prior to the child ’ s eighteenth birthday . If the court fails to make this determination , the parties will be left litigating in probate court . Practice Tip : Be sure to include in the Final Judgment an acknowledgment that the minor child suffers from a condition that arose prior to their eighteenth birthday which may render the child a dependent beyond the age of majority and that the Court should retain jurisdiction to modify and enforce the child support obligation .
While a Parenting Plan may not be enforceable in Guardianship proceedings , these agreements may be used as prima facie evidence in determining the best interest of the child , once he or she reaches adult - hood . The agreement can create a game plan and potentially reduce the likelihood of future litigation . n
1
See Fla . Stat . Chapter 744 and Fla . Stat . § 393.12 .
2
Hardman v . Koslowski , 135 So . 3d 434 ( Fla . 1st DCA , 2014 ).
3
See U . S . C . §§ 1400 , et seq . ( 2019 ) and Chapter 1000 , Florida Statutes ( 2019 ).
Author : Kristi J . McCart - McCart & Tesmer , P . A .
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