CS for CS for SB 226                             First Engrossed
       
       
       
       
       
       
       
       
       2023226e1
       
    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”; providing that civil suits to establish
    6         support for dependent adult children may be filed only
    7         in a certain court by specified individuals;
    8         specifying a timeframe during which such suits may be
    9         filed; providing an exception; specifying procedures
   10         for establishing such support; requiring such support
   11         to be paid to the dependent adult child or other
   12         specified persons; authorizing the court to
   13         irrevocably assign such support to certain trusts
   14         established for the benefit of the dependent adult
   15         child for a specified purpose; prohibiting the
   16         Department of Revenue from filing petitions to
   17         establish, modify, or enforce certain support orders;
   18         amending s. 61.13, F.S.; conforming a provision to
   19         changes made by the act; specifying that a child
   20         support order does not terminate on the child’s 18th
   21         birthday in certain circumstances; specifying that a
   22         court may modify a child support order for a minor
   23         child or child who is dependent in fact under certain
   24         circumstances; authorizing either parent to consent to
   25         mental health treatment for a child unless stated
   26         otherwise in the parenting plan; amending s. 61.29,
   27         F.S.; providing applicability; amending s. 61.30,
   28         F.S.; conforming a provision to changes made by the
   29         act; creating s. 61.31, F.S.; requiring the court to
   30         consider certain factors when determining the amount
   31         of support for a dependent adult child; authorizing
   32         the court to assign support to certain trusts
   33         established for the benefit of the dependent adult
   34         child for a specified purpose; requiring the court to
   35         consider certain state and federal programs and
   36         benefits in making its decisions; prohibiting the
   37         court from ordering support that will cause
   38         ineligibility for certain programs; amending s.
   39         393.12, F.S.; providing an additional circumstance
   40         under which a guardian advocate must be represented by
   41         an attorney in guardianship proceedings; specifying
   42         that petitions to appoint a guardian advocate for a
   43         person with a developmental disability may request
   44         authority to bring a civil suit to establish periodic
   45         payments from the person’s parent or parents;
   46         providing construction; amending s. 742.031, F.S.;
   47         authorizing, rather than requiring, the court to order
   48         a father to pay attorney fees and certain costs and
   49         expenses to specified persons; making a technical
   50         change; amending s. 742.06, F.S.; conforming a
   51         provision to changes made by the act; creating s.
   52         744.422, F.S.; authorizing a guardian of a dependent
   53         adult child to petition the court for authority to
   54         bring a civil suit to establish certain support
   55         payments from the dependent adult child’s parent or
   56         parents in certain circumstances; specifying that the
   57         amount of such support is determined pursuant to
   58         certain provisions of law; providing construction;
   59         providing an effective date.
   60          
   61  Be It Enacted by the Legislature of the State of Florida:
   62  
   63         Section 1. Section 61.1255, Florida Statutes, is created to
   64  read:
   65         61.1255Support for dependent adult children; legislative
   66  intent; powers of court.—
   67         (1)LEGISLATIVE INTENT.—It is the intent of the Legislature
   68  to:
   69         (a)Codify and clarify existing common law and Florida case
   70  law recognizing that the parents of a dependent adult child have
   71  an obligation to support that child.
   72         (b)Provide procedures for establishing support for a
   73  dependent adult child.
   74         (c)Provide safeguards, when establishing court-ordered
   75  support for a dependent adult child, to protect and preserve any
   76  means-based government benefits the dependent adult child is
   77  receiving or may be entitled to receive.
   78         (2)POWERS OF COURT.—
   79         (a)For purposes of this section, the term “dependent adult
   80  child” means an unmarried adult who is incapable of self-support
   81  as a result of a physical or mental incapacity that began before
   82  the person reached the age of 18.
   83         (b)A civil suit to establish support for a dependent adult
   84  child may only be filed in circuit court in the county in which
   85  the dependent adult child resides by one of the following:
   86         1.The dependent adult child or his or her agent under a
   87  durable power of attorney.
   88         2.A parent or other person on behalf of the dependent
   89  adult child.
   90         3.The dependent adult child’s guardian advocate appointed
   91  under chapter 393 or guardian appointed under chapter 744, if
   92  the dependent adult child’s right to sue or defend lawsuits has
   93  been removed by the court.
   94         (c)A civil suit to establish support for a dependent adult
   95  child may be filed at any time after he or she reaches the age
   96  of 17 years and 6 months, unless such an order is already in
   97  place having been established during the child’s minority.
   98         (d)If a court has jurisdiction over the parties because of
   99  an issue of child support, the parents may agree in writing to
  100  provide for dependent adult child support in the existing case
  101  if the agreement is submitted to the court for approval before
  102  the dependent adult child reaches the age of 18. Otherwise, the
  103  amount of support to be paid by one or both parents must be
  104  established in a separate support proceeding in circuit court
  105  pursuant to paragraph (b).
  106         (e)Support ordered after the dependent adult child reaches
  107  the age of 18 may be paid only to the dependent adult child or
  108  his or her court-appointed guardian advocate, guardian, or agent
  109  under a durable power of attorney. However, the court may
  110  irrevocably assign the support to a special needs trust under 42
  111  U.S.C. s. 1396p(d)(4)(A) or to a pooled trust under 42 U.S.C. s.
  112  1396p(d)(4)(C) established for the benefit of the dependent
  113  adult child by the dependent adult child, his or her agent under
  114  a durable power of attorney, the court, a parent or grandparent,
  115  a guardian, or a guardian advocate who has been delegated those
  116  rights in order to maintain the dependent adult child’s means
  117  based government benefits.
  118         (f)The Department of Revenue may not file a petition to
  119  establish, modify, or enforce a support order under this
  120  section.
  121         Section 2. Paragraph (a) of subsection (1) and paragraph
  122  (b) of subsection (2) of section 61.13, Florida Statutes, are
  123  amended to read:
  124         61.13 Support of children; parenting and time-sharing;
  125  powers of court.—
  126         (1)(a) In a proceeding under this chapter, the court may at
  127  any time order either or both parents who owe a duty of support
  128  to a child to pay support to the other parent or, in the case of
  129  both parents, to a third party who has custody in accordance
  130  with the child support guidelines schedule in s. 61.30.
  131         1. All child support orders and income deduction orders
  132  entered on or after October 1, 2010, must provide:
  133         a. For child support to terminate on a child’s 18th
  134  birthday unless the court finds or previously found that the
  135  minor child, or the child who is dependent in fact and between
  136  the ages of 18 and 19, is still in high school and is performing
  137  in good faith with a reasonable expectation of graduation before
  138  he or she reaches the age of 19 s. 743.07(2) applies, or the
  139  continued support is otherwise agreed to by the parties;
  140         b. A schedule, based on the record existing at the time of
  141  the order, stating the amount of the monthly child support
  142  obligation for all the minor children at the time of the order
  143  and the amount of child support that will be owed for any
  144  remaining children after one or more of the children are no
  145  longer entitled to receive child support; and
  146         c. The month, day, and year that the reduction or
  147  termination of child support becomes effective.
  148         2. The court initially entering an order requiring one or
  149  both parents to make child support payments has continuing
  150  jurisdiction after the entry of the initial order to modify the
  151  amount and terms and conditions of the child support payments if
  152  the modification is found by the court to be in the best
  153  interests of the child; when the child reaches majority; if
  154  there is a substantial change in the circumstances of the
  155  parties; the minor child, or the child who is dependent in fact
  156  and between the ages of 18 and 19, is still in high school and
  157  is performing in good faith with a reasonable expectation of
  158  graduation before he or she reaches the age of 19 if s.
  159  743.07(2) applies; or the when a child is emancipated, marries,
  160  joins the armed services, or dies. The court initially entering
  161  a child support order has continuing jurisdiction to require the
  162  obligee to report to the court on terms prescribed by the court
  163  regarding the disposition of the child support payments.
  164         (2)
  165         (b) A parenting plan approved by the court must, at a
  166  minimum:
  167         1. Describe in adequate detail how the parents will share
  168  and be responsible for the daily tasks associated with the
  169  upbringing of the child;
  170         2. Include the time-sharing schedule arrangements that
  171  specify the time that the minor child will spend with each
  172  parent;
  173         3. Designate who will be responsible for:
  174         a. Any and all forms of health care. If the court orders
  175  shared parental responsibility over health care decisions, the
  176  parenting plan must provide that either parent may consent to
  177  mental health treatment for the child unless stated otherwise in
  178  the parenting plan.
  179         b. School-related matters, including the address to be used
  180  for school-boundary determination and registration.
  181         c. Other activities; and
  182         4. Describe in adequate detail the methods and technologies
  183  that the parents will use to communicate with the child.
  184         Section 3. Section 61.29, Florida Statutes, is amended to
  185  read:
  186         61.29 Child support guidelines; principles; applicability.—
  187         (1) The following principles establish the public policy of
  188  the State of Florida in the creation of the child support
  189  guidelines:
  190         (a)(1) Each parent has a fundamental obligation to support
  191  his or her minor or legally dependent child.
  192         (b)(2) The guidelines schedule is based on the parent’s
  193  combined net income estimated to have been allocated to the
  194  child as if the parents and children were living in an intact
  195  household.
  196         (c)(3) The guidelines encourage fair and efficient
  197  settlement of support issues between parents and minimizes the
  198  need for litigation.
  199         (2)The guidelines in this section do not apply to support
  200  for a dependent adult child as defined in s. 61.1255(2)(a). The
  201  amount of support for a dependent adult child is determined by
  202  s. 61.31.
  203         Section 4. Paragraph (a) of subsection (1) of section
  204  61.30, Florida Statutes, is amended to read:
  205         61.30 Child support guidelines; retroactive child support.—
  206         (1)(a) The child support guideline amount as determined by
  207  this section presumptively establishes the amount the trier of
  208  fact must shall order as child support for a minor child, or a
  209  child who is dependent in fact and between the ages of 18 and 19
  210  and who is still in high school and is performing in good faith
  211  with a reasonable expectation of graduation before he or she
  212  reaches the age of 19, in an initial proceeding for such support
  213  or in a proceeding for modification of an existing order for
  214  such support, whether the proceeding arises under this or
  215  another chapter. The trier of fact may order payment of child
  216  support which varies, plus or minus 5 percent, from the
  217  guideline amount, after considering all relevant factors,
  218  including the needs of the child or children, age, station in
  219  life, standard of living, and the financial status and ability
  220  of each parent. The trier of fact may order payment of child
  221  support in an amount which varies more than 5 percent from such
  222  guideline amount only upon a written finding explaining why
  223  ordering payment of such guideline amount would be unjust or
  224  inappropriate. Notwithstanding the variance limitations of this
  225  section, the trier of fact must shall order payment of child
  226  support which varies from the guideline amount as provided in
  227  paragraph (11)(b) whenever any of the children are required by
  228  court order or mediation agreement to spend a substantial amount
  229  of time with either parent. This requirement applies to any
  230  living arrangement, whether temporary or permanent.
  231         Section 5. Section 61.31, Florida Statutes, is created to
  232  read:
  233         61.31Amount of support for a dependent adult child.—
  234         (1)In determining the amount of support to be paid after a
  235  dependent adult child as defined in s. 61.1255(2)(a) reaches the
  236  age of 18, the specific terms and conditions of such support,
  237  and the rights and duties of both parents with respect to the
  238  support, the court shall determine and consider all of the
  239  following:
  240         (a)The dependent adult child’s income and assets.
  241         (b)Any existing and future needs of the dependent adult
  242  child which are directly related to his or her mental or
  243  physical incapacity and the substantial care and personal
  244  supervision directly required by or related to that incapacity.
  245         (c)Whether a parent or other person pays for or will pay
  246  for the care or supervision of the dependent adult child or
  247  provides or will provide substantial care or personal
  248  supervision to the dependent adult child himself or herself.
  249         (d)The financial resources available to each parent for
  250  the support, care, and supervision of the dependent adult child.
  251         (e)Any other financial resources or other resources or
  252  programs available for the support, care, and supervision of the
  253  dependent adult child.
  254         (2)The court may irrevocably assign the support to a
  255  special needs trust under 42 U.S.C. s. 1396p(d)(4)(A) or to a
  256  pooled trust under 42 U.S.C. s. 1396p(d)(4)(C) established for
  257  the benefit of the dependent adult child by the dependent adult
  258  child, his or her agent under a durable power of attorney, the
  259  court, a parent or grandparent, a guardian, or a guardian
  260  advocate who has been delegated those rights in order to
  261  maintain the dependent adult child’s means-based government
  262  benefits.
  263         (3)In making its decisions, the court shall consider:
  264         (a)Any state or federal programs and benefits that the
  265  dependent adult child is receiving or may receive due to
  266  reaching the age of majority; and
  267         (b)The effect that the court-ordered support would have on
  268  the dependent adult child’s eligibility for such programs and
  269  benefits.
  270         (4)The court may not order support that will cause
  271  ineligibility for programs in which the dependent adult child
  272  currently participates, or programs and services for which the
  273  dependent adult child is reasonably expected to become eligible
  274  upon reaching the age of majority.
  275         Section 6. Paragraph (b) of subsection (2) and subsection
  276  (3) of section 393.12, Florida Statutes, are amended to read:
  277         393.12 Capacity; appointment of guardian advocate.—
  278         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
  279         (b) A person who is being considered for appointment or is
  280  appointed as a guardian advocate is not required to need not be
  281  represented by an attorney unless required by the court or if
  282  the guardian advocate is delegated any rights regarding property
  283  other than the right to be the representative payee for
  284  government benefits or to receive periodic payments for the
  285  support, care, maintenance, education, or other needs of the
  286  person with a developmental disability pursuant to s. 61.1255.
  287  This paragraph applies only to proceedings relating to the
  288  appointment of a guardian advocate and the court’s supervision
  289  of a guardian advocate and is not an exercise of the
  290  Legislature’s authority under pursuant to s. 2(a), Art. V of the
  291  State Constitution.
  292         (3) PETITION.—
  293         (a) A petition to appoint a guardian advocate for a person
  294  with a developmental disability may be executed by an adult
  295  person who is a resident of this state. The petition must be
  296  verified and must:
  297         1.(a) State the name, age, and present address of the
  298  petitioner and his or her relationship to the person with a
  299  developmental disability;
  300         2.(b) State the name, age, county of residence, and present
  301  address of the person with a developmental disability;
  302         3.(c) Allege that the petitioner believes that the person
  303  needs a guardian advocate and specify the factual information on
  304  which such belief is based;
  305         4.(d) Specify the exact areas in which the person lacks the
  306  decisionmaking ability to make informed decisions about his or
  307  her care and treatment services or to meet the essential
  308  requirements for his or her physical health or safety;
  309         5.(e) Specify the legal disabilities to which the person is
  310  subject; and
  311         6.(f) State the name of the proposed guardian advocate, the
  312  relationship of that person to the person with a developmental
  313  disability; the relationship that the proposed guardian advocate
  314  had or has with a provider of health care services, residential
  315  services, or other services to the person with a developmental
  316  disability; and the reason why this person should be appointed.
  317  The petition must also state if a willing and qualified guardian
  318  advocate cannot be located, the petition shall so state.
  319         (b)A petition to appoint a guardian advocate may include a
  320  request for the authority to bring a civil action in circuit
  321  court to establish periodic payments from either or both parents
  322  of the person with a developmental disability for the support,
  323  care, maintenance, education, or other needs of that person
  324  pursuant to s. 61.1255. This section may not be construed to
  325  confer any obligation or duty for a guardian advocate to pursue
  326  support for the person with a developmental disability.
  327         Section 7. Subsection (1) of section 742.031, Florida
  328  Statutes, is amended to read:
  329         742.031 Hearings; court orders for support, hospital
  330  expenses, and attorney fees attorney’s fee.—
  331         (1) Hearings for the purpose of establishing or refuting
  332  the allegations of the complaint and answer must shall be held
  333  in the chambers and may be restricted to persons, in addition to
  334  the parties involved and their counsel, as the judge in his or
  335  her discretion may direct. The court shall determine the issues
  336  of paternity of the child and the ability of the parents to
  337  support the child. Each party’s social security number must
  338  shall be recorded in the file containing the adjudication of
  339  paternity. If the court finds that the alleged father is the
  340  father of the child, it must shall so order. If appropriate, the
  341  court may shall order the father to pay the complainant, her
  342  guardian, or any other person assuming responsibility for the
  343  child moneys sufficient to pay reasonable attorney attorney’s
  344  fees, hospital or medical expenses, cost of confinement, and any
  345  other expenses incident to the birth of the child and to pay all
  346  costs of the proceeding. Bills for pregnancy, childbirth, and
  347  scientific testing are admissible as evidence without requiring
  348  third-party foundation testimony, and shall constitute prima
  349  facie evidence of amounts incurred for such services or for
  350  testing on behalf of the child. The court shall order either or
  351  both parents owing a duty of support to the child to pay support
  352  under chapter 61 pursuant to s. 61.30. The court must shall
  353  issue, upon motion by a party, a temporary order requiring child
  354  support for a minor child under pursuant to s. 61.30 pending an
  355  administrative or judicial determination of parentage, if there
  356  is clear and convincing evidence of paternity on the basis of
  357  genetic tests or other evidence. The court may also make a
  358  determination of an appropriate parenting plan, including a
  359  time-sharing schedule, in accordance with chapter 61.
  360         Section 8. Section 742.06, Florida Statutes, is amended to
  361  read:
  362         742.06 Jurisdiction retained for future orders.—The court
  363  shall retain jurisdiction of the cause for the purpose of
  364  entering such other and further orders as changing circumstances
  365  of the parties may in justice and equity require. Modifications
  366  and enforcement of child support, time-sharing, and support for
  367  a dependent adult child are determined under chapter 61.
  368         Section 9. Section 744.422, Florida Statutes, is created to
  369  read:
  370         744.422Petition for support for a dependent adult child.
  371  Pursuant to s. 61.1255, a guardian may petition the court for
  372  the authority to bring a civil suit in circuit court to
  373  establish periodic payments from either or both parents of the
  374  dependent adult child for the support, care, maintenance,
  375  education, and any other needs of a dependent adult child if not
  376  otherwise provided for in the guardianship plan. The amount of
  377  support is determined pursuant to s. 61.31. This section may not
  378  be construed to confer any obligation or duty for a guardian to
  379  pursue support on behalf of a dependent adult child.
  380         Section 10. This act shall take effect July 1, 2023.