It is well known that a child becomes an adult at age 18 and acquires the freedom to make his or her own decisions. If the child was bound to follow a custody or parenting time order between his or her parents, then that obligation terminates upon the child's 18th birthday. However, did you know that, under limited circumstances, a parent can be ordered by the circuit court to pay child support until the child reaches 19 years and six months?
MCL 552.605b provides as follows:
- "(1) A court that orders child support may order support for a child after the child reaches 18 years of age as provided in this section."
- "(2) The court may order child support for the time a child is regularly attending high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the recipient of support or at an institution, but in no case after the child reaches 19 years and 6 months of age. A complaint or motion requesting support as provided in this section may be filed at any time before the child reaches 19 years and 6 months of age."
- "(3) A support order entered under this section shall include a provision that the support terminates on the last day of a specified month, regardless of the actual graduation date."
There are three specific conditions that must be satisfied for post-majority support to continue to age 19 ½?
- The child is regularly attending high school on a full-time basis. This does not extend to attendance at a college, university or trade school.
- The child has a reasonable expectation of completing sufficient credits to graduate from high school. A student who is simply attending but failing all of his classes and is likely not to earn a high school diploma or GED may not be eligible for continued support.
- The child is residing on a full-time basis with the recipient of support or at an institution.
The parties could also make an agreement to provide for post-majority support of a child. MCL 552.605b(5). However, the lack of an agreement does not prevent the circuit court from ordering support up to age 19 ½ provided that all of the conditions on MCL 552.605b(2) are met. Lee v Smith, 310 Mich App 507 (2015).
The issue of whether a child is living "full-time" with a parent for the purposes of MCL 552.605b(2) is a question of fact. In Weaver v Giffels, __ Mich App __; 895 NW2d 555 (2016), a husband and wife were divorced with one daughter who lived with her father three days per week and her mother four days per week. The daughter turned 18 years old in 2014, was still enrolled in high school and expected to graduate in 2015. The father filed a motion to terminate child support retroactive to his daughter's 18th birthday, arguing that the mother was no longer entitled to support because the child was not living there on a "full-time basis" while attending high school. Since his daughter always lives three days per week with him, the mother cannot claim that she was living with her "full-time". The circuit court denied the motion, holding that the support obligation continued because the daughter lived with her mother "in full compliance with the custody order". The circuit court judge noted that the term "full-time" was not defined, but to terminate support would "undermine the intent of the statute and the policies embodied in the Michigan Child Support Formula."
The Michigan Court of Appeals reversed the holding of the circuit court. It recognized that a 18-year old is no longer subject to any custody or parenting time orders but still could be subject to child support orders. As a result, it is error to conclude that the daughter resided with the mother "full-time" because "she continued living in accordance with the arrangements set forth in the now-inapplicable parenting-time order." Id at 563. The definition of "reside" is one that "contains both a physical-presence and an intent element, it is quite possible that [the daughter] could reside full-time with the payee based on her intent to make her mother's home her permanent residence-while still spending some overnights with her father-as long as her intent was to reside full-time with her mother." Id at 563-564. Some factors to consider in determining where someone "resides" includes:
- (1) the subjective or declared intent of the person of remaining, either permanently or for an indefinite or unlimited length of time, in the place he contends is his "domicile" or "household";
- (2) the formality or informality of the relationship between the person and the members of the household;
- (3) whether the place where the person lives is in the same house, within the same curtilage or upon the same premises;
- (4) the existence of another place of lodging by the person alleging "residence" or "domicile" in the household. Id at 564.
The Michigan Court of Appeals remanded this case back to the circuit court to make a determination whether or not the daughter resided full-time with the mother which includes, but is not limited to, inquiring what the intentions of the daughter are as far as her living arrangements go.
If you have questions about child support in Michigan or require legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.