When One Spouse or Parent Is Disabled

When One Spouse or Parent Is Disabled

It frequently comes up in divorce or family law cases that one of the spouses/parents is disabled, or is claiming to be disabled. A spouse's claim of disability can have ramifications when it comes to determining child support, spousal support, and possibly child custody. I've italicized the 'and' because many people claiming disability for support purposes don't realize that that can possibly put into question their ability to parent their children. The reason is this:

Imagine a person who claims he or she is too disabled to do any type of work whatsoever, therefore, he or she is claiming that he/she needs more child or spousal support from the other spouse. However, quite a few family law judges consider raising a child to be a job in and of itself. The laws regarding community property and spousal support recognize that a spouse who stays home to care for the children works just as hard as the spouse who goes to the office.

Family Code Section 4320, regarding spousal support, instructs the family law judge to consider the amount of time a parent stayed at home to care for the children as a factor in determining an appropriate amount of spousal support. So, yes, caring for children is a job. So, when a spouse claims he or she is too disabled to work, it can raise the question as to whether or not he or she is capable of caring for the children.

Does a parent's disability affect child custody determinations?

To be clear, regarding the Family Court's consideration of a parent's disability in determining child custody, Family Code Section 3049 codifies Marriage of Carney, 24 Cal.3d 725, 736, which essentially states that the Court can't presume that a parent is unable to care for a child due to his or her disability, but rather that the Court should consider how the disability might, if at all, affect the parent's ability to care for a child, along with all other factors that bear on the child's best interests.

An Example of the Law in Action

As a practical matter, however, a parent claiming disability needs to be careful. A few years ago, I was involved in a case where the parents shared equal custody of their daughter, but the mother wished to take their daughter and relocate out of state. She had claimed on numerous occasions that she was too disabled to work. One of her reasons for moving was that she couldn't support herself because of her disability, and therefore, she needed to move in with her parents. She made it clear in her testimony how fatigued and weak she was as a result of her disability. This backfired on her. In making his decision that the daughter would remain in California with the father, the judge considered a variety of factors affecting the child's best interests, such as the stability of the parents and the child's ties to family, friends, and the community, but the judge also noted that the mother put her own ability to care for the child into question when she spoke of how fatigued she was.

Is a disabled person entitled to spousal support and child support?

In regards to the issue of child and spousal support, a lot of people presume that just because they are receiving disability from Social Security, the Family Court will presume that they are in fact disabled, and in more need of support, or less likely to be able to provide support to their children. However, it is important to note that neither the Family Court nor the opposing party are bound by Social Security's decision to grant disability. Under the doctrine of res judicata, a person is not bound to a court's decision unless that person is or was a party to the case. For example, if Jack and Jill sue each other over a breach of contract, the Court's decision as to who is right does not affect Fred because he is not a party to the case. Fred may not even know about the case. Therefore, it would be inherently unfair for the Court to make a decision regarding Fred's rights while resolving the dispute between Jack and Jill, particularly when Fred may not even know what's going on.

By the same token, social security's determination as to one spouse's disability is not binding on the other spouse's right to argue in Family Court that the spouse receiving disability can actually work, and therefore, is in less need of spousal support. The spouse who is receiving disability from social security will still have to prove in Family Court that he or she is disabled. Social Security's decision, by itself, is not conclusive.

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