Posted on 06/01/2005 5:50:08 AM PDT by right2parent
The Logic Behind Income Based Child Support Guidelines, and their Proper Application
May 11, 2005
Prevent the arbitrary application of welfare laws by protecting basic due process rights.
The entire history of government teaches us that it always attempts to accumulate power and always tries to undermine limitations on its authority. This is certainly illustrated by the “evolution” of public child support policy.
Some organizations and the Minnesota state agency are arguing that the reconstruction of Minnesota’s child support guidelines require a major overhaul to assure judicial fairness in setting child support orders. Some concerned parents and organizations fault the guidelines for not reflecting the actual cost of raising a child, while the state agency promotes guideline changes that would factor in the income of both parents. I see the private reformers as misconstruing the nature of the guidelines, while the state agency advocates enhancements to a transparent scheme for the redistribution of income. The real problem with the guidelines is not in its design but in its application.
It is the improper use of this statute and the associated violations of private rights that have driven challenges to today’s child support policy. The ultimate fix will come about through educating judges and legislators on the proper, restricted application of the guidelines to cases related to public welfare. It is a public obligation of a welfare agency that forms the basis for determining whether, and to what amount an accused absent parent is responsible for reimbursement and to contribute towards relieving the government of this obligation.
The legislation that demands the use of this procedural law limits county agency intervention to conditions where there is a public child welfare concern, in what may otherwise be a private family matter. There is currently no procedure to examine whether a child support problem related on an application for support and collection services identifies any public child welfare concern. There is no provision for even a Tennessen Warning before the agency collects the required personal information because, they say, it is collected from your estranged partner. The result is an arbitrary determination that the county welfare agency makes to justify its authority to interfere, and a lack of a process to document such a determination.
What is the solution?
Proper application of the guidelines statute requires an examination of relevant facts relating to evidence of a public interest. The state shares an interest with a custodial or foster parent when the state is authorized to collect a contribution from non-custodial parents.
The proper assessment of an application would identify evidence of the welfare agency’s pecuniary interest. A Tennessen Warning would alert the accused absent parent of an attempt to gather such incriminating evidence, and offer an opportunity to challenge it. Groups looking to affect public policy must understand the inherent constitutional limitations of state welfare agencies, and the need for basic due process protection.
There is an urgent need to provide for the protection of the private rights of an accused absent parent when the government decides to act in a manner that so greatly affects them. The fix requires very little adjustment in the law, and eliminates a great deal of wasted tax-dollars. A review of all the cases currently open is required to restore a constitutional footing with this program.
Does the “Guidelines” statute contain a special garnishment table? What’s that?
"Guidelines" analysis begins with an understanding of what characterizes the underlying debt, not by the use of what is essentially a garnishment table in a procedural statute to fabricate the debt out of thin air. Only the ability to pay is determined under chapter 518. See Hennepin County v. Geshick, 387 N.W.2d 439 (Minn. App. 1986). See also Minn. Stat § 256.87, but read carefully, with an understanding of its history.
Current child support policy ignores the significance of reading Minnesota Statutes in the context of their original Session Law. A Minnesota statute is only evidence of the law. When read in conformity with the entire law, it is easier to understand the nature of the "guidelines statute." The guidelines do not determine the underlying debt at all. It is a procedural statute, based on an assessment of a public obligation established under another statute. The product of this procedure is an order to recover the maximum amount an obligor can afford to pay for reimbursement and/or for contribution toward the identified public obligation. This is how the child support program “works in tandem” with the public assistance programs it was created to support. See Sullivan v. Stroop, 496 U.S. 478 (1990).
The vary nature and subject of this law has not changed. Certain elements of it have only been amended to include those cases, which pose even a risk of affecting the public purse. The level of risk is then measured in terms of the potential public obligation.
How is the cost to raise children factored into the child support program?
It is proposed, the "guidelines" need to reflect the cost to raise a child. This ignores the fact that the categorically income based garnishment table included in this statute is there to protect the interests of the obligor, considering some of the costs he is providing directly, not to establish the underlying obligation.
The public interest that justifies an order under the substantive law are for an ongoing contribution towards public assistance the state is otherwise obligated to provide, and an amount to repay the state for the amount he could have contributed while public assistance was provided to his needy family (arrears). The guidelines assure that this amount does not exceed the abilities of the obligor to provide it. The actual public obligation might be much higher, and arrears might also be forgiven, at the discretion or the Commissioner.
The cost to raise a child is properly considered in the formulation of the level of need qualifying a family for assistance benefit payments. Economic data regarding the cost to raise a child have not been used to construct guidelines garnishment tables because it is unrelated to their purpose. The income used to determine the appropriate amount an absent parent should pay to offset or recover such benefit payments is adjusted by his direct contribution to some of these costs such as insurance and child care. More than this pecuniary interest, the state cannot demand. The state could neither demand it in an intact family, as Justice Yetka pointed out in the Moylan decision.
“Our courts, in interpreting our constitution and our laws, do not mandate equality in lifestyle; they only mandate that all citizens have an equal opportunity before the law. If, therefore, the legislature cannot impose dollar amounts on married parents in supporting their children, how can it do so with regard to separated, unmarried or divorced parents? I submit that the legislature cannot except when the parents are either unable or refuse to support their children adequately and thereby impose a burden on the taxpayers.” Moylan v. Moylan, 384 N.W. 2d 859 (citation omitted).
Are there other kinds of actions for support money?
An action for the support of children is also available for an abandoned family under common law, whether or not there is a public interest. Standing to bring an action of this kind is not dependent on the income of the accuser. The public support statute did not replace this common law remedy. They are cumulative. To determine which is the appropriate law, the court must evaluate the evil sought to be cured.
Support money is defined in Minn. Stat. § 518.54 subd. 4(1). It is an award for the support of any child, in various proceedings. The term “child support” is now used as a special kind of support money defined in Minn. Stat. § 518.54 subd. 4(2). A proceeding for this kind of child support involves an obligation of the state to provide public assistance, and is for reimbursement, or for a contribution by absent parents, under section M.S. § 256.87.
The U.S. Supreme Court has construed the term “child support” as used throughout Title IV of the Social Security Act to mean payments for the benefit of a dependent child by an absent parent (See Sullivan). The term is used in the same respect in Minnesota statutes. This special kind of support is the only kind that may be established or modified under the special procedure described in the guidelines statute.
In Conclusion
The use of the guidelines statute must be restricted to cases that come within the authority of county welfare agencies. They were created to protect a non-custodial parent’s ability to support himself, while providing as much as he can to offset a public obligation for his dependent children, or for reimbursement of public funds already expended under social welfare programs.
In accordance with Minnesota’s well-established rules of administrative law and procedure, the county agency responsible for administering child welfare programs must document each determination of a public obligation or interest. Additionally, the agency must allow any adversely affected individuals a forum and timely opportunity to challenge the agency’s determination of such a public obligation or interest. This is achieved with a Tennessen Warning, and with a formal process to assess the appropriateness of any agency action or attempt to establish a IV-D child support obligation or to collect private data. Due process is provided an accused "absent parent" by establishing an assessment process for acceptance of an application for IV-D "services" and a sound basis for determining the state's pecuniary interest.
Scott Booth, Apple Valley, MN
I see now. It is the obligation of private citizens to fund the "public obligation of a welfare agency" regardless of his rights, and at the whim of a gynocracy (family law court system).
Also regardless of his ability to pay.
Greed...
There is so much I could say on this, I'd be here all day. Suffice it to say SoVa Jr's father paid not one thin dime. Mr. SoVa however, has been pushed nearly to the brink of financial insolvency by the former Mrs. SoVa and her attorneys. She has a brand new house and a new Lexus. Mr. SoVa makes four times what she does, and pays her nearly 30%. Then the IRS says she gets to claim them on her taxes, and Mr. SoVa can't, unless she gives permission. Guess who claims them?
Having been to the court hearings, and told by Mr. SoVa's attorney that the former Mrs. SoVa's attorney was the former law partner of the presiding judge, and discovering that there's nothing that can be done about the situation--he has to pay ex's attorney's fees--we have discovered that it's cheaper to bend over and bring your own lube.
No it's cheaper for men to not get married.
I'd rather die alone, than die a slave.
been there and done that, oh and they don't have to spent it on the kids either.
Sorry - link: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mn&vol=apppub%5C9610%5C997&invol=1
Mr. SoVa picked wrong the first time. I think he'd argue your position there. For that matter, so would the first Mr. SoVa.
Actually, we attempted that. She then moved the children to a very expensive and very anti-father state. That's when the judge explained that because of the income disparity--which doesn't include what she gets from Mr. SoVa, of course--we get to pay all of her legal costs, win or lose. She uses her lawyer as a psychotherapist, and he apparently encourages this behavior.
Meanwhile, we just wait for the last 18th birthday. Or for her to choke on the food we put in her mouth.
Married or not doesn't have a lot to do with it. Even an unmarried parent is responsible for the support of his/her children
*gasp* Surely, you're not suggesting that men abstain from having sex with untrustworthy women ?? /sarc
It works both ways.
You missed my point.
I dunno--I know some pretty stupid women who are going to pay for at least 18 years with no help.
Of course, I'm smarter now.
Amen. 10 down, 8 to go. (Years, not kids) What are the chances of, when the child is old enough to essentially decide for themselves, of his choosing to live with you? That's the other option I will be pursuing in 2-3 years.
Without going into much detail, let's just say Mom is exceptionally talented at few things, but emotional blackmail is her forte.
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