By Sande L. Buhai. Full text here.
It is generally agreed that parents should (morally) and must (legally) be required to support their children until they reach the age of majority. This article examines the circumstances in which parents should or must support their children thereafter. Do parents have an indefinite obligation to provide financial support for their children with disabilities? Is this a purely moral duty or should there be a legally enforceable duty as well? This Article examines the historical approach to these issues and then considers the issue of the moral duty, first from the religious perspective and then from a philosophical perspective. Both religion and moral philosophy support the idea that parents should, in most cases, do what they can to support their adult disabled children. Nevertheless, this article argues that courts and legislatures should not transform this moral duty into a legal one. Compelling theoretical and practical justifications weigh heavily against legally enforceable parental support duties. The theoretical justifications—the arguments that we should not legislate morality; that true altruism is motivated by love, compassion, or sympathy, not by state mandate, and that our nation is founded upon the principle of individual liberty, in which each person has no positive legal obligations to others enforceable by the government except those that are voluntarily accepted—compel the conclusion that the state should not mandate familial support of adult disabled children. The practical considerations—that courts are not well-suited to adjudicate intrafamilial relations of this kind, that legislatures would have to amend laws governing family relations, that a blanket duty of support is likely, in many situations, to violate our intuitive notions of fairness, and that the recognition of legal causes of action between family members is inherently problematic—also compel this conclusion.
Most parents love and care for their children. Even if the children have reached adulthood, most parents do all they can to support them. Familial support is best left to the conscience of individual family members. It cannot and should not substitute for institutions, governmental or otherwise, that provide support for persons with disabilities even-handedly, without regard to the wealth or status of their parents. Ultimately, the Article concludes, imposition of an unqualified legally enforceable parental duty to support adult disabled children is inappropriate.