In Marriage of Edwards, a family court determined that a father's obligation to pay support to his ex-wife continued, even though the child was an adult and was attending a state university. The parties had previously stipulated that the father would continue to pay child support after the child became an adult and agreed to split the child's college tuition. Under California law, the father's obligation to pay child support would have ended when their son attained the age of 18 and graduated high school. But for reasons not mentioned within the decision, he agreed to pay child support until their son reached the age of 25.



Several years after entering into the agreement, the father filed an Order to Show Cause for modification of the child support order, arguing that it was unjust and inappropriate for him to continue to have to pay support, since he had a significant decrease in income and the child was not living with the mother. Furthermore, the father argued that the child was not longer in the care and custody of the mother, since he lived at the university and had received a sizeable financial aid packet from the state.

Mother, on the other hand, argued that their adult son was still within her primary care, given that the son's "stuff" was still at her house, he used the house to receive mail, he listed the house as his address to the university, and he came home for extended visits during the school's breaks. Consequently, the mother argued that it was not unjust or inappropriate for the court to order the father to continue to pay guideline child support.

The family court agreed with the mother and refused to depart from the guideline formula for calculating child support. The lower court found that there was no change of circumstances, warranting a departure from the guideline formula. The court proceeded to calculate child support based on the guideline formula and lowered the child support payment, based on father's decreased income. However, the court granted the mother 100 percent timeshare of the adult child, which is a significant factor in California, as the amount of time a parent has responsibility for a child impacts the amount of child support to be paid. Obviously, the lower court had bought into mother's argument that she had primary care and responsibility of the adult child.

Fortunately for the father, the Court of Appeal was not persuaded by mom's argument, and reversed the lower court's decision to order guideline child support. The Court of Appeal agreed held that ordering guideline child support under the circumstances would be unjust and inappropriate. Furthermore, based on the facts presented, the court specifically found that the adult child was not in the mother's primary care and responsibility.

In rendering its' decision, the Court distinguished the case of In Re Marriage of Drake (1997) 53 Cal.App.4th 1139 where the guideline formula was applicable to child support for a mentally incapacitated adult child whose mother took full responsibility for his situation and care.

An obvious lesson from this case is that the court will look to the parent who has responsibility of the child in determining the child's custodial parent. In a case where the child is an adult it is possible that neither parent may qualify.

This case is also an eye opener to those who enter into agreements for the continued support of an adult child. We can see how a parent may get off of the hook by filing a modification of child support, when it becomes apparent that the other parent is no longer responsible for the child. In other words, these types of stipulations and orders may be more modifiable then what we previously imagined. Thus, parties should be careful not to bargain away significant rights on behalf of continued support of an adult child.

On the other hand, the fact that the adult child attends college does not mean that an order will not be enforceable. In a case where the adult child continues to live with a parent, while attending a local college, the parent is still primarily responsible for the child, and the court would probably enforce the type of stipulation entered into by Mr. and Ms. Edwards.