A Return to Welfare As We Knew It? Child Support Guidelines Declared Unconstitutional

Men's News Daily ^ | March 20, 2002 | Roger F. Gay

[RogerFGay]

A Return to Welfare As We Knew It?
The beginning of the end of child support reform

By Roger F. Gay

(Published at Men's News Daily and Toogood Reports, March 21, 2002)

A Georgia court has declared the state’s child support guidelines unconstitutional. The decision bans the use of a presumptively correct formula that produces arbitrarily high awards, a universal practice in the United States since 1990. The consequences of a nationwide ban could extend well beyond allowing courts to set child support awards at reasonable levels.

The judgment states three requirements for constitutionally acceptable child support decisions. Both parents have an equal obligation to support their children in accordance with their relative means to do so; regardless of their gender and custodial status. The amount awarded as “child support” must be limited to address only the need for financial support of dependent children. Child support awards must be rationally related to the relevant facts and circumstances of each case.

Child support law existed in the thirteen colonies and has existed in the states since the beginning of the nation’s history. Not surprisingly, the requirements presented in the Georgia judgment are reminiscent of traditional law that developed through more than two hundred years of case precedent. Federal reforms effectively blocked the application of established legal principles by extending the use of politically controlled formulae, known as child support guidelines, to non-welfare cases. State courts have been required to apply their state’s formula in every child support case and presume that results are correct.

Despite a federal requirement for states to review their guidelines to assure that their use results in a just and appropriate award in every case, no state has ever validated the logic of their guidelines. According to child support collection entrepreneur Robert Williams who is the primary designer of most state guidelines, the objective was to increase the average amount of an award by two and a half times. It is this practice in particular, arbitrarily increasing awards by using a presumptively correct formula that the Georgia court found unconstitutional.

Since the federal reforms took effect, mathematical studies performed by the Project for the Improvement of Child Support Litigation Technology (PICSLT) have confirmed the necessity of the three principles in defining the logic for properly determining child support awards. The overpayment resulting from the use of guidelines has become known as hidden alimony.

On the other side of the issue is a strange coalition of special interest groups that profit from the current system. These include state enforcement agencies, private collection businesses, and women’s groups that have sought higher financial benefits for divorce. Billions of dollars in federal funding have driven the system, creating a vast network of political friends.

It was the reforms themselves that were largely responsible for bringing the child support collection industry into existence. Private collection agencies, such as the one owned by Robert Williams, keep approximately 15 percent of all the money they collect. The government enforcement system is also rewarded by an increase in federal funding in proportion to the amount collected. During the 1990s, these financial benefits led to a unique form of mutual support and power sharing between government and private agencies under the rubric of privatization.

The coalition exerted enormous influence on government policy and managed a persuasive propaganda campaign against a group they labelled “deadbeat dads.” Promoters projected substantial drops in welfare rolls by “forcing fathers to pay.” Taxpayers were promised significant savings. But the promise was not substantiated by credible feasibility studies and the savings did not materialize. Significant reductions in welfare dependency were only experienced along with a general drop in unemployment.

The reforms drove many fathers into debt and poverty, at times resulting in jail sentences for non-payment. The new system decreased their ability to spend time with their children, increased demands on temporarily unemployed fathers who sought reductions, forced low income fathers to work in the cash economy to survive, and even forced payments from some men who had never met the mother. Billions of dollars have been collected that cannot be dispersed. The Georgia court, rightly so, determined that the child support system subjects parents, especially fathers, to unnecessary government interference.

Certain administrative procedures for setting and enforcing child support awards have also been declared unconstitutional in Michigan and Minnesota. Child support enforcement agencies exercise powers reserved for the judiciary. States have done little to reform their systems and it may take further action to compel states to operate constitutionally.

The fate of the child support system is largely in the hands of attorneys, who need to make greater efforts to exercise the constitutional role of the judicial branch. At least twenty billion dollars has been paid in court costs and attorneys’ fees in the process of arbitrarily increasing award amounts over ten years. That is approximately the total amount of child support legally due each year. Lawyers are now set to experience another windfall if guidelines are determined unconstitutional throughout the country as millions of non-custodial parents return to the courts to have their orders reduced to reasonable levels.

The projected reduction in debt would take much of the wind from the sails of the child support collection industry, possibly eliminating financial influences that have distorted welfare reform efforts for more than two decades. This in turn could significantly reduce federal interest in operating a child support enforcement system that manages non-welfare cases.

If courts are to continue to use child support guidelines, greater emphasis needs to be placed on credible engineering research and development. Designs need to be validated to the extent possible before they are put into use and bad ideas need to be rejected before they harm the public. The application of a presumptively correct formula for determining child support awards is a profound deviation from established constitutional process that demands careful and constant scrutiny.

Roger F. Gay is lead researcher on Project for the Improvement of Child Support Litigation Technology. He can be reached at picslt@mail.lawguru.com.

[headsonpikes]

And Americans think they live in a free country!

American Socialism has lawyers instead of commissars; socialworkers instead of volkspolizei; taxes instead of forced labor camps.

But the same human scum rises to the top; and the same poor, dumb b*stards are chewed up and spat out by the privileged nomenklatura.

Advice to youth: "Disrespect wrongful authority; they won't live forever." ;^)

[Catspaw]

The Delaware-Melson model is a hybrid of combined income and percentage, and has been, as you point out, modified by the tinkerers.

The states, however they formulate their child support guidelines, have to comply with with the child support recovery acts, various federal legislation, HSS mandates, and approvals from the various bureaucrats up & down the line. An edict from the feds recently caused my state to have to revise (and will be revising) child support orders because previously, Wisconsin allowed child support to be expressed as a dollar amount or a straight percentage. The feds said that the Wisconsin child support guidelines can be expressed as a percentage of the gross income; however, when child support is set, the percentage can only be used for calculation, but child support has to be expressed as a dollar amount. It's keeping the child support agencies, custodial and non-custodial parents and their lawyers busy.

[Catspaw]

It is and it isn't run by people who pay--it depends on whether the state has an interest in the case. The states are paid by the feds on a percentage of the amount of child support collected in welfare/public assistance cases. That's why there is a zealous pursuit of obligers in cases in which the custodial parent is or was on welfare (of some sort) and a lack of zeal for non-welfare cases.

[Lorianne]

These girls (and few of them are "women") are getting the message that girls who have babies they can't afford to take care of are "victims" deserving of help from the legal system and the taxpayers.

Welfare support to children subsidizes the defaulted obligations of BOTH parents, not just one. Therefore, your tax dollars are going to pay for men to irresponsibly create children just as much as for the women. We're also sending a message to men that its OK, the govenment will pick up the tab for the kids they co-create. Send them the message that any babies they produce are going to be their responsibility and theirs alone,

Actually it's your responsibility too. If you don't want ot pay in welfare, you'll pay later in more crime, more police and more prisons and a generally more miserable place to live. I've traveled and lived in places in the world where there is no safety net and men have no legal obligations to their kids. Americans don't have the stomach for the consequences.

and nobody's going to feel sorry for them (though we may confiscate the baby if they don't feed it)

Its still going to cost you money to feed clothe house and educate these kids. Glad your're so generous. Guess you don't mind paying for other people's kids.

and you'll see them start to be a lot more careful about getting pregnant in the first place.

Actually your proposal has been tried and it didn't work. Check out the English Bastardy Laws which made illigitimate children the sole responsibility of the mother. All it did was increase poverty, crime, hunger, disease, depravity, homelessness, and infanticide. After 10 years even the stout hearted Victorians couldn't take it and the laws were repealed.

The best plan of action out of a series of lousy options is to require BOTH parents to support the kids they they co-create. Its simple, easy to understand, and fair. Even then, we have to resign ourselves that if we want to live at a certain level of safety and decency, we'll have to buy the priveledge.

[Brytani]

My next suggestion to you is a course in reading comprehension. First, I did not say "I guess" it take two to make a baby, I said GUESS WHAT, it takes two. Secondly, as I clearly stated, I am a woman - now if you have some sort of strange way of speaking to other women by calling them "oh, silly boy" I strongly suggest you explain yourself.

Now, since you obviously can not understand or comprehend written english, I will wait until you pull out a dictionary, go back over my post to you and make a reply - until then, I understand there are community colleges that teach reading comprehension and remedial courses in the english language for adults who never learned.

[GovernmentShrinker]

As I said, these laws date back to an era when women had almost no opportunity to earn a living. Just because something didn't work in Victorian England doesn't mean it won't work in 2002. The trouble with holding men responsible for supporting children they never intended or wanted to create is that often they don't even know they created them (not possible for women) and often even the women don't know which man participated in creating them.

I recall a memorable subway ride a couple of years ago (I ride daily in NYC), in which the mostly professional rush hour crowd was treated to a foul-mouthed though well-intentioned black adolescent girl's take on an acquaintance's pregnancy. Seems the pregnant girl was going around boasting that she was having the baby of some highly admired fellow (read extra-tough gang member), but as my co-rider so eloquently explained to the friend sitting next to her (and this is an exact quote): "She don't know it's his baby; I could tell you twenty n*ggers she f*cked last summer."

It's not very practical (or constitutional) to start DNA testing every guy in the neighborhood, and even then we'd frequently come up with a guy with no job, no fixed address, and no qualifications enabling him to support himself by legal means, much less support anyone else. What's worse is, once you peg some teenage boy as a father and sock him with a child support order, it virtually guarantees that he will steer clear of the legitimate job market, in order to avoid paying and avoid being located. IIRC, about half the fathers of single mom welfare recipients' children have not been identified, and of the ones who have been, many can't be found, are in prison, or aren't paying because they have no legitimate traceable income. The "make the fathers pay" mantra has become a silly exercise in self-righteousness, with little real effect on children's lives or taxpayers' burden.

[RogerFGay]

I'm glad you weren't thrown by the typo -- I meant, many, many, many cases in which paternity has NOT been established. The thing is, we don't know what's going on in those cases. Certainly, everything imaginable, but we don't have statistics on how many take care of their children, how many walk away, and how many fathers don't know that they're fathers. I'm not talking about virgin births of course, but as you know there's no instantaneous sign and no expectation of longer term contact with one night stands. What we know about cases in which paternity is not established and there is no child support order is that fathers do not pay through the government system. You're only assuming that they don't pay at all. So far as those cases that we do know about, where there is an established child support award (high percentage of divorced rather than never-married fathers), is that fathers have always paid quite well in relation to their ability to pay. Whether the statistics on payments would still show such a high percent paid (around 80) if paternity is established in all cases, we don't know. There's some likelyhood that the compliance rate might drop, based on the suspicion that as a group, never married fathers are poorer, and have less stable employment than divorced fathers.

[RogerFGay]

I have a suspicion that the original Delaware-Melson model was based on the Swedish model (I'm quite familiar with the Swedish model), but it's only a suspicion. The Swedish model, just like the Melson model was worked out from first principles in a rational way. It wouldn't be just a coincidence that the result is similar. The concept of child support, traditionally, was the same everywhere in the world so far as I can tell from my research on child support internationally. Variations on ways of calculating child support depended more-or-less completely on the political context and welfare infrastructure. The origin of the percent (Wisconsin) formula can and has been traced. Irwin Garfinkel, Wisconsin Institute for Research on Poverty copied it from Soviet Russian law, Article 81 of the Russian Family Law Code. I heard about Wisconsin's attempt to allow child support awards to automatically vary as a payer's income changed (by using the percent instead of fixed dollar amount). That pretty much spoils the myth that the intent has anything to do with the payer's ability to pay. As far as the percent method is concerned, there never was any good myth that it had anything to do with children's needs.

[RogerFGay]

The states are paid by the feds on a percentage of the amount of child support collected in welfare/public assistance cases. Too bad you're wrong on that point. They receive a fixed amount plus a bonus related to the amount "collected." Based on that reward system, they forced as many non-welfare case payers in the system as they could and classified all payments as "collections." So when you're looking at impressive dollar figures on how much the enforcement system "collected" you have to keep in mind that the vast majority of "collections" is money that would have been paid even if there was no enforcement system (as we know it).

[RogerFGay]

Good points in post #48. Interesting side note: DNA testing everyone, checking all children to see if their fathers are actually their real fathers, etc. was proposed recently in Sweden. (All children have a right to know who their parents are.) The response so far is that it would be too expensive. But like all technology, I expect the cost will go down in the future.

[Jim Noble]

Is it not evident that if a child has two parents, one of whom is capable of his/her support, and one who is not, that the child should be in the care and custody of the capable one?

The forced transfer of funds from the capable to the incapable, under the supervision of the state, has created a monstrosity.

[Jim Noble]

You are correct, and in two respects.

First, unmarried women were never able to receive "child support" until 1971, when the Supreme Court ruled that they were being denied equal protecvtion of the law.

Of course they were. That was the whole point of the law, to reward married women for a socially constructive lifestyle. Bastardy was never just a morally undesirable state, but carried substantial legal penalty as well.

As to the "contract" that a married man undertakes-you are certainly correct. But the state wants now to enforce only one part of the contract-his obligaton to support-while allowing the obligation of his (now ex) wife to have sex with him, clean his house, and provide him with the love and companionship of his children to be voided without fault on his part and without penalty to the other party to the contract.

An odd contract that-only one provision enforceable at law, the others not obligations at all.

[Catspaw]

Actually, Wisconsin did allow the straight percentage of income basis for a number of years (I'll have to research the history of the law when I get to the office); it was only within the past few months that the feds told Wisconsin that the percentage had to be expressed as a fixed dollar account in child support orders and the orders that had child support expressed as only a percentage of the gross income had to be modified.

Along with Irwin Garfinkel, the other person who developed the child support guidelines in Wisconsin was a UW prof named Marigold Melli.

[Catspaw]

I should have been more clear--it's bonuses based on performance as well as penalties. This is the law.

I will note that child support workers cheer when they can move a case into the "case with collections," even if that collection is a buck a year.

And now that I've reread the law, don't get me started on how much money has been thrown down a rathole on computerizing the state child support agencies--and how often that computerization goes haywire.

[Catspaw]

Unless they're going to change marital presumption, unless the DNA testing is done very early in a child's life, there are still going to be men paying child support for children they didn't father.

[RogerFGay]

Oh, get me started on U. of Wisc. law professor Marigold Melli. I talked with her after publication of their "working paper" on the "Percent of Income Standard" and asked for the logical / economic basis of it. She said she didn't know. She was only a law professor helping with a write up for Irwin Garfinkel. So I called Irv. You might be able to guess: he said he didn't understand the logical basis; Marigold Melli, the lawyer was working on that. The only thing they both knew is that they wanted everyone to call it a "Standard" rather than a formula. They wanted to be able to say that they'd established a "standard." It took me some time to find out where the idea actually came from. First, I knew that communist countries used a percent formula. It's just part of their general centrally steered wealth redistribution strategy. Then someone sent me a copy of a conference proceedings with a paper in it by a graduate student who'd worked with Garfinkel on child support at IRP. Right there in a footnote was confirmation that the guideline "standards" that had been put in use were copied from socialist countries. She complained that no review whatsoever had been done to see whether they made sense in the American context (incl. constitutional sense). Then I got confirmation elsewhere, that part of the IRP work involved visiting academics and bureacrats from other countries. I found myself in a position to interview immigrants from many countries and discovered that Russia had the percent model first. Then I was able to make contact with someone who could actually look up the Russian law and translate it. Finally I learned that Garfinkel and Melli belong to international organizations involved with internationalizing welfare and domestic relations laws. One person Garfinkel works a lot with that you might not want to get me started on -- Sara McLanahan.

[RogerFGay]

They need to change that. Even if it is "presumed" it is unconstitutional to continue to enforce the presumption after someone proves that it's not true. But worse yet, there are a lot of cases involving men who've never even met the mother who can't get out of child support payments once child support agencies have designated them as fathers.

[RogerFGay]

I just got a quick summary of what happened in Wisconsin (percent v. dollar) in an email note from the president of a children's rights organization who'd worked on it -- after I'd fumed over the appointment of former Wisc. Gov. Tommy Thompson as Sec. of HHS in an article. (The appointment was made under pressure from Pat Robertson if you recall.) But I seem to recall, and this just makes sense, that HHS forced Thompson to change the system during the last presidential election season -- Thompson having the reputation of a Republican welfare reform guru (thanks partly to Robertson as well as many articles supporting the notion that the Wisconsin Model should be the model for the nation). I wrote to Pat Robertson once, mentioning the communist origin of the Wisconsin Model (generally). I got a letter back from an aid saying that the 700 Club is a Christian thing. I couldn't find reference to the percent model in the bible.