Written by: Attorney, Douglas C. Gardner
In its June 9, 2011 ruling in Gibbs v. Gibbs (2 CA-CV 2010-0120 & 2 CA-CV 2010-0172 (consolidated)), the Arizona Court of Appeals ruled on a case regarding child support for an adult child with a severe mental handicap. The full opinion is presently posted at http://www.apltwo.ct.state.az.us/Decisions/CV20100120%20Opinion.pdf.
In this case, the child support had ended when the child reached age 22, and the issue did not come back to court for several years. The father, in an effort not to pay child support, argued that it was now too late to bring this case back to court because the mother did not ask for support as the child reached age 22.
The Court determined that the issue regarding the mental handicap of the child was not previously determined, and therefore the Court had jurisdiction to enter new child support orders despite the child being well over 18 and despite the child support ending when the child turned 22 by agreement of the parties.
The relevant Arizona Statute, Section 25-320(E) provides:
Even if a child is over the age of majority when a petition is filed or at the time of the final decree, the court may order support to continue past the age of majority if all of the following are true:
1. The court has considered the factors prescribed in subsection D of this section.
2. The child is severely mentally or physically disabled as demonstrated by the fact that the child is unable to live independently and be self-supporting.
3. The child’s disability began before the child reached the age of majority.
In this case, the child already had the disability when she reached age 18, but the full effect of the disability was not known at that time. Had the child been fully healthy at age 18, and then lost mental capacity, the Court would not have jurisdiction to re-open the child support matter once the child was emancipated.
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