In an era where workers over 50 can’t find work, something one legal scholar called “America’s best kept secret” might become increasingly common: a lawsuit for parent support. ((Ann Britton, America’s Best Kept Secret: An Adult Child’s Duty to Support Aged Parents, 26 CAL. W. L. REV. 351 (1990).)) Surprisingly, even most certified family law specialists have never heard of parent support. In fact, California law has imposed a duty of parent support since Governor Newton Booth signed the “parent support” bill into law in 1872. ((County of Los Angeles v. Hurlbut, 44 Cal.App.2d 88, 103 (1941).)) That law, in turn, was based on the Elizabethan Poor Law of 1601. ((Rehabilitation Inst. of Chicago v. Einhorn, 141 Cal.App.3d 1036, 1038 (1983).)) The duty of parent support remains obscure, but with so many 50-somethings standing in soup lines, it might be time for attorneys to dust off their code books.
Enforcement of an Adult Child’s Duty to Pay Parent Support
Under Family Code section 4400, every adult child must support his parent if the latter is in need and “unable to maintain himself by work.” ((Fam. Code §4400.)) The purpose of the statute is enforce a “moral obligation of support.” ((Radich v. Kruly, 226 Cal. App.2d 683, 686-687 (1964).)) In other words, an adult child has a duty to support his parents just as his parents once had a duty to support him. ((In re Marriage of Leni, 144 Cal.App.4th 1087 (2006).)) But the duty to pay parent support is broader – and can last longer – than the duty to pay child support. Whereas a parent might have to pay child support until the child turns 18 (19 if he’s still in high school), ((Fam. Code §3901(a))) an adult child might have to pay parent support for decades.
Either a needy parent or the county on the parent’s behalf can bring an action in family court against the parent’s child to enforce the duty of parent support. ((Fam. Code §4403(a)(1).)) In determining the amount of parent support that the child must pay, the court must consider each party’s earning capacity and needs, obligations and assets, age and health, and standard of living, any other factors that it deems “just and equitable.” ((Fam. Code §4404(e).)) In other words, the court must consider the same factors that it would consider in determining whether to award permanent spousal support in a divorce proceeding. ((Fam. Code §4320.))
Avoidance, Modification, and Termination of Parent Support
If a parent is eating out of a garbage can because his adult child won’t support him, the odds are that the child is pretty angry at him. For that reason, a parent should expect his child to petition the court to relieve him of his duty to support his parent. ((Fam. Code §4410.)) Under Family Code section 4411, the court may grant the petition only if: (1) the parent abandoned the child when he was a minor; (2) the abandonment continued for at least two years before the child turned 18 years old; and (3) the parent was physically and mentally able to support him during the period of abandonment. ((Fam. Code §4411.))
Section 4411 doesn’t define “abandonment.” In the context of a proceeding to free a child from the custody and control of a parent who has abandoned him, a petitioner can show that the parent abandoned the child in one of three ways: (1) he left him without identification; (2) he left him in the care and custody of the child’s other parent for six months and failed to support the child or communicate with him during that time; or (3) he left him in the care and custody of someone other than the child’s other parent for at least one year and failed to support the child or communicate with him during that time. ((Fam. Code §7822(a)(1).))
The law seems to contemplate that a child can file a petition for relief from the duty of parent support either in response to a request for parent support or independently of such request. In any event, the child must personally serve the parent with the petition, but may do so in as little as five days before the hearing. ((Fam. Code §4412.)) The court doesn’t acquire jurisdiction to hear the petition until 30 days after the child has served a notice of the pendency of the proceeding on the county counsel, or the district attorney in a county not having a county counsel, of the county in which the parent resides. ((Fam. Code §4413.))
Even if a court denies a child’s petition for relief and orders him to pay parent support, he can later move the court to modify or terminate a support order “where justice requires.” ((Fam. Code §4405.)) The court can reduce the amount of parent support or order the child to “pay” zero support if the child can show that one of the parties has had a change of financial circumstances. That’s much easier to prove than abandonment. Furthermore, a child can bring the motion to modify or terminate parent support at any time. Thus, any parent should seriously consider hiring an attorney if his child makes such a motion.