Posted on 06/18/2002 9:17:33 AM PDT by RogerFGay
The Constitutionality of Child Support Guidelines Debate, Part II
May 20, 2002
By Roger F. Gay
On February 25, 2002, superior court judge C. Dane Perkins declared the Georgia State child support guidelines null and void because they "violate numerous provisions of the Constitution of both the United States and the State of Georgia". In a spontaneous retort, the chair of the ABA's child support committee, Laura Morgan, promised two articles in rebuttal. This is a response to her second article; The Constitutionality of Child Support Guidelines, Part II. References to previous articles are given below.
In part, Laura Morgan continues to avoid the constitutional issues dealt with in the Georgia decision. When she does strike a glancing blow against a critical issue, she doesn't tell the truth. Federal law required that states begin using presumptively correct child support guidelines in late 1989. When child support reforms were being considered in the period 1975-1995, little to no research had been done in relation to the underlying issues. It was an age of special interest heaven in which fathers, as part of the genetically flawed group -- men, were depicted as monsters who thoughtlessly abandoned wives and children in epidemic proportions. It was claimed that strict enforcement of child support orders would significantly reduce, if not eliminate poverty. The federal government called itself to action, with extreme prejudice, and responded with new laws. Fathers have money taken from their paychecks, lose drivers and professional licenses, and are sent to jail for non-payment of child support. At the same time, whether it had anything to do with "enforcement" or not, presumptively correct child support guidelines were introduced producing a large arbitrary increase in the size of awards. Laws were also passed to disallow reductions based on changes in income.
Standard of Scrutiny on Constitutional Issues
Laura Morgan claims that application of the guideline has not had an adverse impact on fathers. The guidelines she claims are inadequate, forcing "custodial parents to spend a greater percentage of income on the cost of raising a child than the noncustodial parent is forced to spend." She further argues that there is a "rational reason for treating" [fathers] "differently." Therefore, an adverse impact on fathers is constitutionally acceptable. In this part of the argument, Laura Morgan is claiming that the level of scrutiny given to the constitutional issues is wrong. There are three commonly acknowledged levels of scrutiny that are applied to constitutional questions. The judge chose to apply the middle standard of review; whether the means chosen by the government are "substantially related" to an "important" government objective, and found the guideline unconstitutional. "Further, if this Court were only to apply the lowest standard of scrutiny, i.e., whether the Guidelines bore a rational relationship to a legitimate government purpose, the Guidelines would still fail."
The war against fathers (men generally and western civilization along with it) was intense and is still too fresh in our minds for Laura Morgan to ignore the intent to cause harm. (Is it over yet?) The public discussions and political speeches were more characteristic of lynch mobs with pitchforks and torches than policy debate. It was a period in which the heroines of poverty, poor single mothers would be offered support for education to help in their emergence from poverty, but not poor men. Single fathers would be forced to work and to pay even if unemployed. Women were to be helped. Men were to be punished. It was a time of such blatant and sinister political extremism that when Congress was debating the closing of military bases as part of the post-Cold War reforms, an alternative proposal by Senator Christopher Dodd (D - CT) was to transform the bases into forced labor camps for fathers who fell one or two months behind in child support payments.
The period included difficult economic times. History shows that during difficult times, evil men call for basic reform. For an alternative historical perspective, see Trudy W. Schuett's NMD article; The Myth of the Deadbeat Dad.
It was during this period that Irwin Garfinkel, head of the Wisconsin Institute for Research on Poverty, imported a suite of Soviet Russian policy that has become known to us as "The Wisconsin Model". (The Child Support Guideline Problem (1998)) The Wisconsin Model became a center-piece for the national child support and welfare reform movement. A slightly reformed version of the Wisconsin and Georgia child support guideline still survives as Article 81 of The Russian Family Code. The reforms certainly did suggest an end to welfare as we knew it, replacing it with a grand scheme for intense and arbitrary government management of the details of personal economics and family life; not just of families dependent on welfare. The reforms forced family law generally, affecting all families with divorced and never married parents and their children into federal jurisdiction. Accompanying this radical transition was a complete breakdown in the separation of power between branches of government as well; for the sake of conforming to laws and bureaucratic procedures designed to fit the political structure of a foreign country.
Reformers promised to go farther. They wanted to have (and presumably still do) the same transforming effect in every basic functional aspect of American life. Their stated targets included not only family life, but the basic relationship between the individual and the state, and yes, of course capitalism. In order to sell their package, it was necessary to present the appearance that it contained something that it did not; "traditional American values." These were stated as "work, family, and responsibility." What was consistently untraditional and un-American was the intent to involve government deeply in the micro-management of all three. Although I have not found the best historical review articles on the web, it is easy to demonstrate that the idea is persistent and has had a broad effect on the policy debate: President Clinton's first National Urban Policy Report, Quenching Poor's Thirst Unlikely Once You Turn Off Federal Spigot, Talents and Stewardship, The White House at Work; President Clinton ..., Radio address by President Clinton, Dec. 1994, Bush welfare plan promotes marriage, work)
It has been no secret that child support guidelines produce unjust and inappropriate results, nor that the reformed procedures for dealing with child support are unconstitutional. Adding to confusion over politically ideology however, Congress privatized a portion of the child support enforcement system. This would seem to have the aim of reducing government involvement by turning some functions over to private industry. There is precedent on how to proceed with an analysis when such confusion exists. Bob Woodward's famous Watergate source once counseled that we tend to take the wrong path when trying to uncover the facts and logic of a political scandal. "Follow the money trail," was his advice.
The government establishment dealing with child support is larger and certainly reforms have made government more involved. There was no federal Office of Child Support Enforcement prior to 1975. Billions of dollars have been spent each year since on maintaining the government child support bureaucracy. That is what bought acceptance by the states. The money also created an army within government to sustain the war against fathers. The reforms have created millionaires outside of government as well. Many of the top executives in private collection agencies were recruited from government agencies. The "private-public" partnership is extremely lucrative for some while it forces many of its victims into poverty, debt, and jail. The child support industry is not guided by the "invisible hand" of capitalism examined by Adam Smith. It is an artifact of government policies that went too far. It is one of the cruelest examples of greed and corruption that the United States has seen in generations.
Georgia uses a percent formula not unlike those used in Wisconsin and Russia. This means that a primary part of the calculation of "child support" is to multiply the payer's income by a fixed percent. It should be obvious to anyone capable of mathematical thought, even in the slightest way, that there is no rational relationship between the formula and the needs of children and the relative ability of parents to provide. It is an artifact of Soviet social (economic) planning carried out in the political context of the government's forced redistribution of wealth. The Soviets of course went much farther in controlling and manipulating wealth than the United States. In the Soviet Union, the effect was to push an enormous portion of their economic activity into the black market and create an empire of poor people hungry for human rights and freedom, as well as food. "Entrepreneurs" not unlike those who sell drugs on street corners in the United States became the center of economic power. Those at the center of political power were worse.
The Right of Privacy
Normal humans hide from intrusion or shoot the intruder (i.e. fight of flight). Labeled as a move to track "deadbeat dads" the federal government spent approximately four billion dollars developing a huge and complex national computer system for keeping track of personal details and economic transactions of everyone living in the United States. It has been manned by as many as 60,000 state and federal employees collecting, recording, and using personal data. Some functions are automated, plucking vast amounts of information directly from electronic records of financial transactions. It is too easy to predict that if current policies are not rescinded, there will be a large movement of economic activity outside the boundaries contained by the database as this is the only civilized alternative for protecting privacy rights. The size of the black market will increase and the industry that will benefit most will be organized crime. This prediction is based on knowledge so familiar to so many, that it is only reasonable to conclude that this is the intended effect. However, the Constitution does not permit unreasonable invasions on personal privacy; certainly not in the guise of family policy.
While the source of the right to privacy has been held to originate in varying constitutional provisions, it has been long recognized to apply to “family” concerns whether the family exists within the confines of marriage or not. Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (8) (1972), Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 at 726-28 (1973).
This Court finds that, by requiring the non-custodial parent to pay an amount in excess of those required to meet the child’s basic needs, as the economic analysis has shown, the Guidelines impermissibly interfere with parental decisions regarding financial expenditures on children. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000) and 147 L. Ed. 2d 49 (U. S. 2000); Moylan v. Moylan, 384 NW 2d 859 at 866 (Minn., 1986).Ironically, Laura Morgan argues in favor of states' rights, applying a rule that the federal government has no business intruding in family issues, including economic ones. Her view is that federal intrusion "would impede the traditional authority of both the state legislature and the state courts to regulate the determination and enforcement of child support orders beyond basic necessities." How that intends to defend overwhelming federal control of family policy, the application of irrational and extremely non-traditional methods, and individual cases decided by legislative or administrative dictate is not explained in her article. Her point seems to be merely, that it is not unconstitutional for a child support award to exceed "that which a parent wants to provide." Subtle father-bashing perhaps, but not a valid defense of policies that interfere with privacy rights. She might be reminded that the Constitution does demand that government officials and bureaucrats play less a role in our private lives than they sometimes want. (Roe v. Wade, 410 U.S. 113 (1973))
Economic Studies and Guideline Design
Laura Morgan challenges the Court's determination, as a matter of fact that the guideline used in Georgia was originally intended for use in welfare cases, and that the obligor has a rising after-tax percentage of income paid to the custodial parent for child support.
The method of awarding a percent of a noncustodial parent's income as child support was used in the State of Georgia, and in other states for ordering the recovery of welfare payments made to poor custodial parents prior to 1989. In fact, the use of presumptively correct formulae generally was exclusively for this purpose of recovering welfare payments prior to federal expansion of the practice to all child support cases. (For example, see Smith v. Smith, 626 P.2d 342 Or. (1980).) Expanding the use of presumptively correct child support formulae beyond their original use marks a significant change in the underlying facts related to their use. One of the primary arguments in favor of the use of child support guidelines is that they are administratively simple, making the processing of welfare cases more efficient and reducing the potential cost of litigation that may be too much for poor (welfare dependent) single mothers to bare. The use of presumptively correct formulae generally for determining child support awards in non-welfare cases is constitutionally questionable.
A statute based on a legislative declaration of facts is subject to constitutional attack on the ground that the facts no longer exist; in ruling upon such a challenge a court must, of course, be free to re-examine the factual situation. See Block v. Hirsh, 256 U.S. 135, 154-155 (1921); Communist Party v. SACB, 367, U.S. 1, 110-114 (1961).The percent formula was one of two child support models recommended by Robert Williams, the child support collection entrepreneur who was hired by the Office of Child Support Enforcement to "provide technical assistance in development of child support guidelines." (Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report, Washington, DC: U.S. Department of Health and Human Services, Office of Child Support Enforcement (1987)). Williams recommended a new child support formula, known as "Income Shares" that did not correspond to legally established principles for determining a child support award. The explicit goal was to increase the average amount of an award two and a half times. He also suggested that the percent formula could be used in welfare cases because it was already in use for that purpose in several states. In order to implement Williams' recommendations in non-welfare cases, the established principles upon which child support orders were based were removed from statutes, leaving no statutory basis for parents to challenge the arbitrary formulae.
A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the Fourteenth Amendment. Bailey v. Alabama, 219 U.S. 219, 233 et seq. ...The so-called "rebuttal criteria" that states added in response to federal regulation do not offer a basis for challenging the formulae. They are typically designed to increase the amount of an award in consideration of costs that are not presented explicitly in a state's formula while the formula itself remains untouchable.
The "underlying economics" of the guidelines currently used by most states were originally used by socialists in the late 19th and early 20th centuries as a crude method for analyzing the effects of disparities in wealth. Wealthier people spend a smaller portion of their wealth on necessity than poorer people. A comparison of the portion of income spent on food for example, was taken as a measure of a family's standard of living. The lower the percent of income spent on food, the higher the standard of living. This is a statistical artifact however, providing only a crude numeric indicator that typically holds true to a group that is large enough to be statistically significant. No corresponding theory exists that supports detailed analysis relating to the needs of individual family members. There is no correspondence between "economic studies" that apply this method and any rational basis for making a child support award decision. These "economic studies" moreover, rely on data that is inadequate for the purpose of determining the cost of raising children. Specifically in regard to the Income Shares model recommended by Williams, it is stated in the original design document of that model that:
… it is possible that achieving confidence in the data base through use of a simple methodology which explicitly relies on "user opinion" will be more effective in moving practices more uniformly toward a fair standard than does reliance on opaque and highly derivative expert interpretations of existing but fundamentally off-target primary economic data. (Hewitt, William E. 1982. "Report on the Washington State Association of Superior Court Judges", Uniform Child Support Guidelines, Institute for Court Management, Court Executive Development Program.)Referring to the "economic studies" employing the method, University of Chicago researchers put it this way:
. . . the presumption that underlies the focus of much of the empirical research and policy debate on income distribution [within households] seems born of ignorance and is supported by neither theory nor fact. (Lazear, Edward P. and Robert T. Michael, "Allocation of Income Within the Household", University of Chicago Press, 1988)Despite the importance of wealth distribution and its meaning in the socialist political economy, development of a valid economic theory did not progress beyond initial crude insights. Countries steered by social democracy operate somewhat better than purely socialist regimes, owing to greater freedom of information and debate. One must realize however that social democracy is a recent historical development with roots in socialism. Fundamental problems still exist in implementation of preferred economic policies. High taxation on necessities for example (food, clothing, shelter, etc.) contradict the basic insight that higher expenditure on necessity means lower standard of living. Insistence on government ownership and control of supply chains has meant monopoly practices that erode the buying power of what income is left after taxes are paid.
We should not lose sight of the fact that the socialist methodology is primarily an implementation of political ideology rather than valid economic theory. The overall effect is lower standard of living and greater government dependence -- exactly the opposite of the stated goals of the legal reforms that were implemented. The evidence that this effect exists in the United States (it is an unavoidable result of the method) is already apparent. Despite an economic boom in the late 1990s, compliance with child support orders declined after 1996. To be completely honest about the child support reforms, we would need to go farther than Judge Perkins in describing the faults of the system. Calling this intrusion into family life "unnecessary" is a gross understatement even if it is all that needs to be said in consideration of the constitution.
Once the cycle of increased government and decreased rights begins it creates its own reasons for continuing. Each election season politicians from both parties unveil their latest ideas for increasing government involvement in work, family, and responsibility and always at increased cost. We must, among other things, assure that freedom and opportunity of information and debate exists in dealing with child support and related issues in the United States. This means eliminating the common practice of effectively leaving fathers out of the child support debate and other discussions related to family issues. The history of this issue would have been much different if fathers had not been systematically excluded from the policy debate and from having a meaningful influence in child support and family policy committees.
In support of her second challenge; against the Court's finding that the percent of obligor's after-tax income ordered as child support rises with income; Laura Morgan merely claims that the finding is wrong. She claims that a "number of respectable studies" show that "the percentage remains flat." Georgia's guideline requires an increasing percent of after-tax income as income rises because the percentages used in the formula are taken on gross income (Georgia Statute 19-6-15 G, b; (5)) Once income is high enough to enter the progressive tax system, as it is in the majority of non-welfare cases, the payer receives a lower percent of gross income after-taxes as income rises. A percent of after-tax (net) income rather than gross income would be "flat" with respect to after-tax (net) income. Laura Morgan is obviously wrong as a matter of fact. Either she has misapplied the conclusions of those "respectable studies" cited or the studies themselves are wrong. (See also, Economic Exhibits offered by Mark Rogers)
Note:
Judge C. Dane Perkins declared the Georgia child support guidelines unconstitutional because their application violates due process, equal protection, the right of privacy, and a Georgia Constitutional provision against the illegal confiscation of property. He also defined three requirements for a constitutionally acceptable child support standard. Laura Morgan's rebuttal to the Georgia decision does not challenge the decision with regard to due process or illegal confiscation of property, nor does she challenge the three constitutionally required principles. I am unfamiliar with the Georgia Constitution and therefore have little to say regarding the illegal confiscation of property, except that it seems logical.
On the question of due process however; the presumptively correct guideline is a direct and obvious challenge to due process. Due process is a fundamental right. Therefore the highest level of scrutiny is required in judging the constitutionality of the presumptive use of the guideline. It should be no surprise to anyone familiar with my work on guideline design that I agree with the three principles. Those traditional child support principles have been validated by mathematical analysis and are both necessary and sufficient for determining "just and appropriate" child support awards according to the legal principle of an implied contract for financial support of children. For additional understanding of the principles in traditional child support law, see Recommendations for Modification of Child Support Guidelines and Reform of their Use Corresponding to the Views of the Pennsylvania Supreme Court.
The Science of Child Support Mathematics
It is possible to develop child support guidelines on more solid grounds. In its rejection of the welfare formula for child support decisions in non-welfare cases, the Oregon Supreme Court did not rule for the use of any alternative mathematical formula in non-welfare cases (See Smith, above). They did however cite work on child support mathematics presented by Maurice R. Franks as coming close to established non-welfare child support law (How to Calculate Child Support, Case & Comment, January-February, 1981 ). Franks' child support models and those like it have often been called Cost Sharing models because legal experts often referred to parental spending on children using the term "cost." Those who read Franks' paper will be impressed with the fullness of his legal citations in support of his model. This is not to say however, that child support decision modeling had made sufficient progress to substantially replace judicial discretion in the application of child support law.
More than one child support guideline designer has chosen to extend Franks' mathematics to address fundamental problems found in his formula. Judge Melson (Delaware-Melson formula) and University of Texas social scientist Judith Cassetty applied the concept of "ability to pay" in their models as a significant improvement over the use of income in determining parental obligations. The use of ability to pay corresponded to both statute and case law in too many states to be ignored.
"Ability to pay" is calculated as each parent's net income minus an amount required for sustenance of one adult. Later models have followed the example of socialist countries, increasing this "self-support reserve" from poverty level to -- for example; one and a third times poverty level for one adult. The use of "ability to pay" in place of income of both parents produces the specific improvement called for in the child support debates that accompanied the federal reforms. Lower income mothers have a lower obligation relative to higher income fathers. The situation for parents with equal income remains unchanged. Use of ability to pay in place of income also protects against ordering so much that the payer is unable to care for himself.
The use of ability to pay partially eliminates the perceived need for arbitrarily high "cost" tables by adjusting the distribution of the child support obligation between the parents. But it does not deal with the question of increasing standard of living in the custodial parent household.
Judith Cassetty developed her model prior to the application of presumptive guidelines to non-welfare cases. She employed the idea of equalizing standard of living in each household. This model can be adjusted for visitation time as long as the adjustment is made on costs that move from household to household with the children, or some adjustment is made in welfare entitlements allowing maintenance of two homes. Her model works specifically for welfare cases, apparently without violating the three established required principles. It cannot however be extended to non-welfare cases as it easily violates the principles in such cases. Many high income custodial parents would complain that it leads to awards that are too low. Some analysts would argue however, that the need for a standard of living adjustment decreases as custodial income increases. In the past, many custodial fathers have done without an order for their ex-wives and girlfriends to pay. Given that more women have custody than men, this is something that current policies do not "let fathers get away with" regardless of the mother's wealth.
Judge Melson intended to develop a formula suitable for general application. Just as everyone else, he developed the model without the benefit of a valid theory to adjust standard of living with a child support payment. Based on many years of experience, Judge Melson decided that adding five percent of the payer's remaining income (after deducting the self-support reserve and basic child support) as a "reasonable" standard of living adjustment.
The good news is that the mathematics of child support has been extended beyond where Cassetty and Melson left it. Given the three established fundamental legal principles, corresponding to the requirements for constitutionality in the Georgia decision a valid mathematics for standard of living adjustment in child support awards has been derived. For a simple introduction to the issue, see The Alimony Hidden in Child support. The mathematics of child support has also been extended to include two households when calculating visitation and joint custody credit.
The problem of crediting for visitation should have been an obvious nail in the coffin for the analytical approach taken by Williams in his recommendations to the states. After more than 15 years, no one using the approach has developed a credible method for crediting non-custodial parent expenditure.
In Closing
Child support reforms were passed and implemented with a range of ulterior motives, most (at least) of which are now known. "Single mothers' rights groups" such as NOW and ACES played an important promotional role in the early days of reform. Certainly they had something to do with the reforms themselves. Child support reforms came on the heels of a failed political effort to increase alimony and many of the ideas of that movement carried over into the child support debate. More important however, was the involvement of political extremists within government and academia who were ready to dramatically expand government power to play with the lives of tens of millions of American citizens -- and their money. Merely labeling them as "political extremists" does not go far enough in describing the full set of ulterior motives within that collection, nor does it explain the strong support given to the reforms by politicians who may generally be regarded as more moderate. It pays to "follow the money trail" to understand the history of child support reform. Tens of billions of dollars of taxpayers' money has been used as bribery to implement and maintain policies that are blatantly unconstitutional and private businesses have been granted the privilege of siphoning off a significant share of noncustodial parent income. It cannot be emphasized enough that we know, and therefore cannot allow it to continue.
Related Articles and Information
Introductory article: A Return to Welfare As We Knew It? The beginning of the end of child support reform
A good representation of child support law prior to the federal reforms, including analysis and presentation of the three legally established principles (given in the Georgia decisions as three constitutionally required principles) is presented in Recommendations for Modification of Child Support Guidelines and Reform of their Use Corresponding to the Views of the Pennsylvania Supreme Court.
Laura Morgan's THE CONSTITUTIONALITY OF CHILD SUPPORT GUIDELINES, Part I
Response to Part I: Laura Morgan at the Bottom of the Slippery Slope
Laura Morgan's THE CONSTITUTIONALITY OF CHILD SUPPORT GUIDELINES, Part II
Key Economic Exhibits by Mark Rogers
Roger F. Gay is the leader and lead researcher of Project for the Improvement of Child Support Litigation Technology, an R&D project focusing on the science, engineering, and application of child support guidelines.
I've seen the article about the judges ruling, but has any action been taken? Has the state of Georgia, NOW and ACES filed an appeal? If so, when is it's status?
Your right. The list goes on. In the case of "child support" under the federal program, evidence supporting a determination that there is a "dependent child," within the meaning of the act, is required before an obligation under the act can be established. This is not some wild theory. Dorsey and Whitney argued the clearest case on the subject in Hernandez v Hernandez, 554 N.W.2d 618 (Minn App 1996). The court remanded the case for findings of dependency, and it was settled out of court. These facts are required on the record so the agency's determination of jurisdiction may be examined by a reviewing court. There is no need to get into multiple resulting abuses when jurisdiction was not properly invoked in the first place.
The biggest problem with the guidelines is the application of this process outside of scope of the agency's authority. The application of the guidelines in cases where the children are dependent on the state for support is an entirely different problem.
We are starting to draw blood in some of the cases where we've raised these issues. The issue of jurisdiction may be raised at any time. Our strongest case is 10 years old. A writ of certiorary is comming together that I'll provide on the net. After this is decided, or not, we intend to join several related actions for federal review. Stay tuned.
There seems to be no chance to convince the legislature to clarify the laws without causing a stir in the courtroom. The major players all seem to be former family law attorneys, perpetuating the business of divorce.
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