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Bar Journal - December 1, 1999

Filial Responsibility - A New Look at an Old Legal Concept

By:
 

The population of the United States and most other First World countries is aging. The elderly in these countries are the fastest growing section of the population. How to support this population is a pressing public policy question. Some believe that a large portion of the burden of supporting the elderly should fall onto their adult children; this concept is known as filial or family responsibility. There are laws in many states that allow for the collection of support from adult children, or the reimbursement from them of funds paid by the state. Most people would agree that children have a moral obligation to help support their parents if needed, but there is a disagreement over legally requiring them to do so - despite the general acceptance of legally enforced duties to support a spouse or children.

For most of history, filial support of the elderly has been the rule rather than the exception. By the third century, early Roman law encompassed filial responsibility in order to preserve the family unit.1 These laws were enforced somewhere between 100 AD and 138 AD.2 The Athenians also had similar laws:

obliging all children to provide for their father when fallen into poverty; with an exception to spurious children, to whose chastity had been prostituted by consent of the father, and to those whom he had not put in any way of gaining a livelihood.3

Similar laws were developed in England in the 1400s.4 After centuries of trying to find ways to address the problem of the indigent portion of society, the Elizabethan Poor Laws were enacted.5 England furthered filial responsibility by enacting the English Poor Relief Act in 1601, which held grandparents, parents and children responsible for supporting poor family members.6 The basic principle of these laws was that as children had a moral duty to support their parents, therefore they had a legal duty to do so.7 The colonists brought these Poor Laws to America. In colonial New York, grandchildren were added to the list of family members responsible for the support of their own indigent relatives.8 Soon, other states had enacted similar statutes, until most states had a filial support law in existence.9 But over the years, these laws were continually eroded in almost all of the United States. This was due to a number of reasons, including the disintegration of the family and its corresponding responsibilities, the decline of the agrarian society, increased mobility of the society, and federal programs set up to handle the need of the indigent elderly.10

With the Industrial Revolution came increasing mobility due to developments in transportation and a decline in the agrarian society. Families no longer had numerous children to work the family farm and children moved further and further away to get jobs in the new urban centers.11 Post-World War II America saw life expectancies rising, and the number of children in each household dropping. In 1900 the average number of children per household was 3.9. That number has dropped to 1.8 as of the mid-1990s.12

Along with the decline in the number of children and their distancing from their parents, the Industrial Revolution led to enormous developments in medical technology that have increased our life expectancies. At the turn of the twentieth century, the average life expectancy for men and women was 47.3 years. That number has made an enormous leap to 75.7 years of age as we approach the 21st century.13

Our aging population is living longer. The children who once cared for them are growing smaller as a group, and live farther away from their parents. Since 1935, the federal government has set up programs to help the growing elderly population, but these programs are strained under the needs they support.14 Since that time, the once widely used, and then neglected, filial responsibility laws have become more and more attractive as a means of diffusing some of these costs.

There are currently 30 states with filial responsibility statutes.15 Most of these statutes limit the child's responsibility to that of necessities for the elderly parent, usually including food, shelter, clothing and medical care.16 Five of the thirty states have made it a crime for the adult child to fail to provide support to the elderly parent. The penalties are largely misdemeanors17 with the stiffest statute, in Maryland, of up to one year in jail and a $1,000 fine.

Even though there are many states that have filial responsibility statutes, they often are not used. On the occasions when they are, they are usually challenged by the children and even the elderly parents who do not want to be burdensome.18 The challenges are often based on three areas of constitutional law: equal protection,19 double taxation,20 and due process.21

In the landmark case of Swoap v. Superior Court of Sacramento,22 both children and parents challenged the California filial support statute, claiming it was a violation of their rights to due process and also the Equal Protection clause of the United States Constitution.23 The family argued that the statute created a classification based on an involuntary association; that groupings based on wealth and ancestry are inherently suspect, and therefore should be looked at by the court under a strict scrutiny standard.24 The court stated the proper standard of review was one of a rational basis,25 and that the classification was "firmly grounded in Anglo-American legal tradition."26 The court stated:

It seems eminently clear that the selection of the adult children is rational on the ground that the parents, who are now in need, supported and cared for their children during their minority and that such children should in return now support their parents to the extent to which they are capable. Since these children received special benefits from the class of "parents in need," it is entirely rational that the children bear a special burden with respect to that class.27

The court in Swoap stated, "[i]t is abundantly clear that children have generally been subject to a duty to support poor parents for a very long time . ... The duty is deep rooted and of venerable ancestry."28

The court in the District of Columbia case of Groover v. Essex County Welfare Board29 agreed with this assertion, stating that there was no violation of the Equal Protection clause when states classify people on the basis that they are children charged with the support obligation of their parents.30

However, in the California case of Department of Mental Hygiene v Kirchner31 the court did find a violation of the Equal Protection clause. In this case, California was attempting to recover the costs of a patient's care from the patient's daughter, under the state statute, arguing that there was a "legal significance attached to the natural bonds of consanguinity."32 The State defends filial responsibility as enforcing a long standing common law duty arising from the traditional moral obligation of adult children to support their parents. The court declared unconstitutional the statute which provided for the reimbursement to the government for care of family members, finding it was a violation of the Equal Protection clause to select a particular class for a species of taxation with no rational basis to support the classification.33 This is the basis for the double taxation argument against filial responsibility laws. The argument is that filial responsibility laws doubly tax relatives of the poor, by imposing an individual tax in addition to a general tax collected to maintain a social welfare program.34

When children have been brought into this world, and loved and cared for by their parents, it is hard to deny the moral responsibility that these children have to help their parents when they are in need. By legally requiring children to support their adult parents, it would not only give legal significance to a strongly held moral belief, but help to control public spending on the fastest growing segment of the population. It is projected that by the year 2030, the population of the Untied States for those age 65 and over is expected to double.35 A large financial burden would be shifted from governmental infrastructure to specific families with the utilization of filial responsibility laws. The same governmental programs that enabled the decline in the reliance of the filial responsibility statutes are ironically one of the prime causes of the renewed interest in them. With the enactment of the Social Security Act in 1935,36 and especially the Medicaid statute in 1965,37 states shifted away from the filial responsibility laws. The Medicaid statute prohibited the states from considering the financial ability of the applicant's family, other than the spouse, in determining eligibility.38 These programs seemed to solve the problem of caring for the indigent elderly, at least for a while.

In the past few decades though, inflation, increasing medical costs, and the booming elderly population have significantly strained the federal systems. Many senior citizens rely solely on Social Security to support themselves. There is the mistaken belief that these benefits are an "insurance policy" held by the government that is paying a return on prior Social Security taxes. Rather, the current benefits being paid are funded from the taxes of current workers.39 With the expansion of those collecting benefits, and the declining number of those adding into the pool, it is a formula for failure. It is estimated that within the span of four years, the average retiree receives in benefits an amount equal to all that he has contributed to the system.40 Social Security, Medicaid and Medicare41 cannot continue on their current path. Filial support statutes are one possible way in which to deal with the ballooning cost of caring for our nation's elderly.

Merits of these laws are easily laid out, yet they need to have limitations to be practical. Some typical limits include: children that reside in different states from his/her parents, parents who have abandoned their children, children who cannot financially help, or the parent with multiple children and the division of the responsibilities. Most of these issues can be, and have been, handled through well drafted statutes or judicially created law in each respective jurisdiction.

In the California case of Radich v. Kruly,42 the appeals court found that if a parent had neglected their child, the child's obligation to support that parent was negated.43 Similarly, in Gierkont v. Gierkont,44 the New Jersey Supreme Court of Appeals reduced a son's support obligation because his father had abandoned him.45 The court in Commonwealth v. Mong46 took this one step further and completely eliminated a son's responsibility because he had been abandoned.47 California courts have stated, "[e]xpecting support and filial devotion from an abandoned child is fruitless."48 They clarify the role of abandoned children in supporting their estranged parents in the case of Gluckman v. Gaines, by stating, "[t]he law should not force a child to make recompense for an assumed standard of upbringing, when a trial court finds that it never existed."49

The courts have also calculated the amount of support owed to a parent according to the amount of time spent with the adult child during their childhood.50 For example, if the parents were only present in the child's life 40% of the time, the support would be adjusted accordingly.51 Some states will only nullify the support obligation if the parent separated from the child without good cause.52 In Oregon, the court found there is no presumption of bad faith on the parent's part in questionable abandonment cases.53

Similar to the issue of abandonment, courts will look at the issue of the treatment of the adult child during his/her childhood.54 If a child was abused55 or treated cruelly,56 the support of the parent will be correspondingly reduced. "A willful or malicious act ... pierces the veil of parental immunity."57 This seems to include the failure to make child support payments, which has been found to negate an adult child's filial responsibilities.58

Courts have also looked at various situations involving multiple children.59 In such situations, each sibling is evaluated individually as to their ability to contribute to the care of the parent.60 Siblings which are supporting their parent may also seek contributions from siblings not aiding in the support,61 or can seek reimbursement from their sibling's share of their parent's estate after death.62 Courts have found that the adult child's spouse's income is not to be looked at in determining the ability to contribute,63 based on the presumption that that adult child has his/her own parent that may need support.

All courts agree that there should be a reasonable determination of the adult child's ability to support the elderly parent.64 The burden of proving the child's ability to contribute falls on the state or county bringing the charges,65 and in determining the child's ability to pay, the court will look at the child's assets, debts, employment status and financial responsibilities.66

These responsibilities include the adult child's own family obligations, such as supporting children or a spouse.67 The courts do not wish to undermine the intents of the statutes (that of relieving the public financial burden and promoting family unity and responsibility), by taking from the adult child's children to give to his or her parents. Therefore the child's first duty is to his or her own minor children68 and to his or her own retirement.69 By allowing adult children to save for their own retirement, the courts hope to eliminate the need for such filial responsibility laws.

Opponents of filial responsibility statutes argue that they will work to keep the poor in the lower income brackets. By requiring lower income households to support their elderly parents, opponents believe that the adult children are never given an opportunity to reach the middle class.70 This problem can be avoided by well drafted filial responsibility statutes which clearly define whom they apply to. The drafters of the statutes can set out a formula to calculate a comfortable level that included the adult child's expenses plus additional finances for retirement and socioeconomic advancement.

Critics of filial responsibility also believe that the administrative costs of applying the statutes will outweigh any benefit that they may confer.71 Once again, this can be negated by clear draftsmanship on the part of legislators. If the statutes are clear as to whom they apply, only cases concerning a child's ability to contribute should proceed to litigation. One study done in Maine reports a reduction in public support costs due to filial responsibility law enforcement.72

Another way in which to combat the cost of litigation is to make the public aware of the existing statutes. Local Social Security offices, and elderly services could educate elderly parents as to their children's responsibility to contribute to their support. By making people aware of exactly where the law stands on the issue of filial support, they will be less likely to litigate this very issue.

The moral obligation of children to support their parents is something that should be enforced by our legal system. The family unit is slowly being eroded by the mobility of our society, and the federal and state deficits are a constant source of concern. The enforcement of filial responsibility laws would help to alleviate both problems. The case-law exceptions that have been carved out in the last decade have made them much more precise, and allowed the statutes to overcome many long standing criticisms of filial responsibility.

These statutes do not require an adult child to pull food out of his/her own children's mouth to feed their parents, nor do they ask an adult child to support an elderly parent when it will be a significant financial burden, or if the parent has abandoned or abused them. These statutes should only be applied when a child is financially able to support the parent who raised and nurtured them. Filial responsibility statutes are based on a morally reciprocal duty that the children owe their parents in return for their creation and upbringing. They will work to strengthen notions of family responsibility by encouraging people to look to their family for support instead of the government.

ENDNOTES

1.

Jean Van Houtte and Jeff Breda, Maintenance of the Aged by Their Adult Children: The Family as a Residual Agency in the Solution of Poverty in Belgium, 12 Law and Society Rev. 645, at 649 (1978).

2.

Van Houtte and Breda, supra note 1, at 649. These laws were developed in conjunction with laws requiring parents to take care of their children as well.

3.

1 Blackstone, Commentaries, 446-459.

4.

Van Houtte and Breda, supra note 1, at 645-654, discussing the development of filial or family law.

5.

James Lopes. Filial Support and Family Solidarity, 6 Pac. Law Journal, 505, at 509 (1975).

6.

Jacob ten Broek, California's Dual System of Family Law: It's Origin, Development, and Present Status, 16 Stan. L. Rev. 257, at 258 (1964). These laws were established after Henry VIII expropriated the monasteries, and private funds for aiding the poor were lacking.

7.

43 Eliz. 1, ch. 2, VI (1601).

8.

Jacob ten Broek , supra note 5, at 291.

9.

Including Delaware, Pennsylvania, New Jersey and Virginia.

10.

Robin Jacobson, Americana Healthcare Center v. Randall: The Renaissance of Filial Responsibility, 40 S.D. L.Rev. , 518 (1995).

11.

Lopes, supra note 4, at 512.

12.

Bureau of the Census, US Dept. of Commerce, Statistical Abstract of the US, at 87 (1994).

13.

Id., at 32. The average projected life expectancy for men and women in the year 2010 is 77.9 years of age.

14.

See 42 USC sec. 401 et seq. The Old Age, Survivors and Disability Insurance (OASDI).

15.

For example, see NH RSA 167:3, Conn Gen. Stat. Ann. 46b-215 (West 1986) , or N.J.Stat. Ann. 44:1-140 (West 1993). The 30 states are Alaska, California, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, and West Virginia.

16.

See Indiana Code Ann. 31-2-9-1.

17.

In California and Montana.

18.

See Swoap, infra note 22.

19.

See United States Constitution, Equal Protection clause, Fourteenth Amendment.

20.

See West Lynn Creamery Inc. v. Healy, 114 S.Ct. 2205 (1994), and U.S. Constitution, 14th Amendment, Equal Protection clause.

21.

See U.S. Constitution, Fifth and Fourteenth Amendments, Due Process clause.

22.

516 P.2d 840 (Cal. 1973).

23.

See U.S. Constitution, Equal Protection clause, Fourteenth Amendment.

24.

Swoap, supra note 22, at 850.

25.

See Strauder v. West Virginia, 100 U.S. 303 (1880), and Washington v. Davis, 426 U.S. 229 (1976).

26.

Swoap, supra note 22, at 852.

27.

Id., at 858.

28.

Id., at 848.

29.

264 A. 2d 143 (Washington D.C. 1970).

30.

Id., at 146.

31.

388 P.2d. 720 (Cal. 1964).

32.

Id., at 723.

33.

Id., at 722.

34.

208 P. 2d. 646.

35.

US Senate Special Committee on Aging, 101st Congress, 2d session, Aging America: Trends and Projections (Comm. Print 1990).

36.

George Indest, Legal Aspects of HCFA's Decision to Allow Recovery from Children for Medicaid Benefits Delivered to Their Parents Through State Financial Responsibility Statutes: A Case of Bad Rule Making Through Failure to Comply with the Administrative Procedure Act, 15 So. Univ. L. Rev. 225 (1988).

37.

42 USCA 1396 et seq. Medicaid statute was created by President Johnson as a result of his "Great Society" plan.

38.

Id., at sec 1396A (a)(17)(d) (West 1992).

39.

42 Hastings L.J. 683, at 693.

40.

America's Elderly: A Scorebook 112 (E. Duensing ed. 1988).

41.

See 42 USC sec. 1395 et seq., and 1396 et seq.

42.

38 Cal. Reptr. 340 (Cal. Dist. App. 1964).

43.

Id., at 343.

44.

134 A.2d. 10 (NJ Sup. Ct. App. 1957).

45.

Id., at 14.

46.

117 N.E. 2d at 33 (Oh. 1954).

47.

Id., at 36.

48.

Gluckman v. Gaines, 71 Cal. Rptr. 795, at 797 (Cal. Ct. App. 1968). Gluckman was an eighty-six year old man who lived in a nursing home. There were serious doubts as to his paternity of Gaines, and Gluckman had, in fact, often told Gaines that he was not his father.

49.

Id. At 797.

50.

Gierkont v. Gierkont, supra note 44, at 13.

51.

Id., at 14. There was a dispute over the amount of time the father had spent with the child, but eventually the court applied a formula in which the eight and one-half years that the father was present were divided by twenty one, to reach a weekly payment of $6.80.

52.

Denny v. Public Welfare Div., 483 P.2d. 463 (Oregon Ct. App. 1971). The mother had sued for support from her son, claiming that she had put him in foster case in order to provide a living for both of them.

53.

Id., at 465. The mother's evidence as to her motive for abandoning her child was uncontradicted.

54.

Radich v. Kruly, 38 Ca. Rptr. 340 (1964).

55.

Id., at 341.

56.

Kerr v. State Public Welfare Commission, 470 P.2d. 167 (1970).

57.

Chaffin v. Chaffin, 397 P.2d. 771 (Or. 1964).

58.

Pelltier v. White, 371 A. 3d 1068 (Conn. Sup. Ct. 1976).

59.

Hanis v. Brougham, 103 N.W. 2d 679 (1960), Mallatt v. Luihn, 294 P.2d. 871 (1956), In re Peterson, 74 N.W. 2d. 148 (1956).

60.

Ketcham v. Ketcham, 29 N.Y.S. 2d. 773 ( N.Y. Fam. Ct. 1941). Children are not obligated to pay equally, but rather by the amount the court determines they can afford.

61.

Mallatt, supra note 59, at 882. The court found that other siblings were equally able to pay support, and therefor were equally liable.

62.

Pavlick v. Teresinski, 149 A. 2d. 300 ( NJ Juv. 1959).

63.

Bradley v. Zimmerman, 180 A. 241, at 242 (NJ Sup Ct. 1935), Mangin v. Mangin, 113 So. 864 (La. 1927), Commonwealth v. Goldman, 119 A.2d 631 (Pa. Sup. Ct. 1956).

64.

Britton v. Steinberg, 24 Cal Rptr. 831 (1962), San Bernadino v. McCall, 132 P 2d. 65 (1942). All statutes in existence require the courts to determine if the child is able to financially support the parent.

65.

Cherokee County v. Smith, 258 N.W. 182 (Iowa 1935).

66.

Gierkont, supa note 44, 134 A. 2d., at 11.

67.

Goldman, supra note 63, 119 A 2d., at 633.

68.

People v. Curry, 321 P. 358 (1924).

69.

In re Diele's Estate, 61 NYS 2d 397. The court defines a child's sufficient needs as supporting his own needs, and then some over and above.

70.

Swoap, 516 P.2d. at 864, (Tobriner dissenting).

71.

Michael Rosebaum, Are Filial Responsibility Laws Constitutional?, 1 Family L.Q. 55 (1967).

72.

W. Garrett, Filial Responsibility Laws, 18 J. Fam. Law 793 (1979).

The Author

Attorney Kirsten Wilson is an Assistant Rockingham County Attorney, Brentwood, New Hampshire.

 

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