Why do current Child Support Guidelines need Improvement?
Roger F. Gay
Project for the Improvement of Child Support Litigation Technology
http://www.geocities.com/CapitolHill/5910/index.html
November 1, 1999When asked for a formal, public explanation for why we need presumptive child support guidelines, supporters give few reasons. Typically, they say that presumptively correct guidelines lead to uniformity, simplify the decision process, and provide greater certainty as to the outcome. They also speculate that certainty will lead to less litigation because there is less reason for it.
(This last bit of speculation never came true and higher courts remain under pressure from an unusually high number of appeals year after year.)
In less public situations, the discussion is much different. A judge sitting on a state panel on gender bias in Virginia put a word in a male activist's ear; that presumptive guidelines produce unreasonably high "child support" awards in order to equal out the difference in income between men and women. "Women's rights" activists view child support as inseparable from spousal support or alimony and therefore argue that there is no reasonable limit to the amount of a child support award.
Even academic studies provide a different view of what the new reformed vision of child support is about. One study that became part of the foundation of the political reform movement was written up by Elaine Sorensen at The Urban Institute. Her federally funded study twisted through a series of statistical speculations to conclude that after paying the current level of child support, some fathers still had some money left over. This news sent advocates off to pressure the federal government to get more of it.
The political discussion that led to sweeping federal reform never really had a responsible flavor. The phrase deadbeat dads was used to justify anything. In the beginning, proponents claimed that reforms would bring down welfare spending. It was clear to reasonable analysts from the beginning that they wouldn't. When tied down to reasonable questions from opponents, advocates within government could only say that reason didn't matter. They were going to do it anyway. You know -- deadbeat dads. After more than a decade in practice, the failure of the reforms to reduce welfare costs keep all but the least well informed in check.
Perhaps the least likely reason to be discussed in legislative debate and by child support commissions is given in federal statute. Federal law requires the use of child support guidelines in all child support decisions. It also requires that use of a guideline, results in an appropriate award in each and every case. The least likely issue to be discussed is whether the use of a state's guideline results in appropriate awards in each case. Somewhere in the process of implementation, this central federal requirement has been forgotten.
Most states use the Income Shares model for child support guidelines designed by child support collection entrepreneur Robert G. Williams of Policy Studies, Inc.(PSI) Williams' collections company receives a percent of collections, presenting a conflict of interest. Advocacy groups representing payers have been concerned as well about the conflict of interest of the states themselves. Additional federal funding is provided in proportion to the amount of child support paid in a state. The majority of those who are involved in developing states' child support guidelines today have direct financial incentives for arbitrarily increasing award amounts.
(For more information on the influence of Policy Studies, Inc., see <a href="http://www.fathermag.com/907/child-support/">Child Support Policy and Robert Williams</a>, Fathering Magazine, July, 1999.)
The PSI model gained popularity in the states when it was published by the Department of Health and Human Services, Office of Child Support Enforcement as "technical assistance" to the states in developing their federally mandated guidelines. No competition was held by the legal community to determine the best model. The PSI model was adopted even though it did not correspond to established legal principles, was not developed by experts in making awards, and has never, in any way, been validated.
(Proponents claim that there is no limit to the amount that can be awarded as child support, thus validation is not an issue to them. For more information about separating child support and alimony, see <a href="http://www.fathermag.com/906/alimony/">The Alimony Hidden in Child Support</a>, Fathering Magazine, June, 1999.)
The Income Shares model, in basic form, includes a numeric table that presumptively represents the correct monetary obligation of parents to their children. The name Income Shares comes from the fact that the obligation is divided between the parents in proportion to their income. The PSI Income Shares model uses arbitrarily derived numeric table values that are said to represent the amount parents in intact families (at a similar income level) spend on their children. Thus, the resulting award is said to obligate the paying parent - but not the recipient - to pay the same amount to support his children, as he would have if the parents had remained married.
Post divorce circumstances are not the same as those of the marriage. Even if the numbers were correct, this would obligate one parent to pay the other an amount that is unrelated to what is spent on his children. The two parents are therefore "obligated" under entirely different standards. So much for uniformity!
A smaller but significant number of states use the percent-of-income formula. The percent-of-income formula takes a fixed percent of the payer's income, which can depend on the number of children involved, as the basic obligation. This formula was first used in socialist or communist countries with strong income controls and with individual economic life heavily integrated with the state. The simple uniform method of calculating the child support transfer payment corresponded to the simple uniformity of economic life of people in those societies, at least as imagined by state planners.
The United States does not of course have such a planned economy. Individual economic circumstances vary widely. The percent-of-income formula does not correspond to the political and economic environment of the United States. The results it gives are entirely random in relation to children's needs and the relative ability of their two parents to meet those needs.
(For more information related to these child support models, see <a href="http://adrr.com/law1/csp11.htm">The Child Support Guideline Problem</a>, a PICSLT paper.)
An even smaller number of states use other models. The most popular in that group is the Delaware model. The Delaware model was originally developed to correspond to the rational principles for making a child support award established in Delaware (and similarly in other states). But the Delaware guideline today is different than originally conceived. It too has been effected by the PSI model. Awards are much higher now because Delaware increased the portion of awards referred to as the standard of living adjustment, in order to bring them closer to those calculated by the PSI model.
Traditionally, and as many people think of as constitutionally required, child support awards were fashioned in relation to the relevant details of the circumstances of parents and children. A typical child support statute, prior to the federal reforms, provided the rational basis for a child support award, not a simple formula giving the presumptively correct amount of an award. One aspect of the constitutional question relates to the use of evidence in showing what the family circumstances are.
In effect, child support guidelines replace actual evidence of family circumstances with the fake evidence provided by the guidelines. For example, the arbitrary values in numeric tables replace actual evidence on how much is spent on children. The numeric values are not the whole story on suppression and distortion of relevant evidence. The simple formulae themselves act to reduce the scope of evidence regarded as relevant to only those factors included in the simple formulae. Worse yet, the logic of overly simple formulae forces irrational interpretation and use of evidence on the judicial process.
To solve the problem completely, the PICSLT proposal is not simply to adopt equations and tables recommended by another group of modelers. There is a fundamental right to question whether any model gives the correct result in each and every case. For the sake of making final judgments in individual cases, child support statutes need to state explicitly what the rational basis of a child support award is. In each case it must be possible to compare the presumptive outcome with the rational basis for an award in view of all evidence presented.
Federal law also requires that states review their guidelines at least once every four years to assure that their use results in a just and appropriate award in every case. So far as PICSLT has been able to determine, no state has ever successfully carried out such a review in the decade that it has been required. Most states simply repeat the same sort of political process that led to the use of the PSI derivative guidelines in the first place. In some "reviews" states have invited PSI president Robert Williams to say that he still thinks his model is ok.
That's a far cry from carrying out a valid technical review to assure that use of a guideline will result in a just and appropriate award in every case. One of the primary elements lacking in the process is the same element that is lacking in the individual case decision process. States typically have eliminated the rational basis for the award of child support from their statutes. Review commissions are then called upon to determine whether awards calculated by use of their guidelines are just and appropriate without having any basis for determining what "just" or "appropriate" means.
After many mathematical studies it became apparent that traditional wisdom has great validity. Rather than reviewing the PICSLT proposal in detail in this article, interested readers are welcome to discuss the question in the Fathering Magazine discussion forum and the PICSLT discussion forum. The assertion is that the following three principles provide a necessary and sufficient basis for just and appropriate awards. Moreover, the rational basis for child support award decisions must be stated in statute in order to meet federal statutory and constitutional requirements.
1. Child support is for the care and maintenance of children.
2. Both parents have an equal duty to support their children.
3. All relevant circumstantial information may effect the amount of the award.
See also related article "On the Cost of Raising Children"
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