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 childs 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 persons 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 childs 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 61.1255Support 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 childs guardian advocate appointed 106 under chapter 393 or guardian appointed under chapter 744, if 107 the dependent adult childs 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 childs 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 childs 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 61.13Support 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 childs 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 61.29Child 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 parents 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 61.30Child 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 61.31Amount 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 childs 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 childs 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 childs 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: 295 393.12Capacity; 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 courts supervision 307 of a guardian advocate and is not an exercise of the 308 Legislatures 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: 346 742.031Hearings; court orders for support, hospital 347 expenses, and attorney attorneys 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 partys 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 attorneys 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: 379 742.06Jurisdiction 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: 387 744.1013Jurisdiction 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 childs 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 childs 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: 408 744.3021Guardians 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 minors 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: 425 744.422Petition 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.