Initial Review of Kentucky Child Support Law
Project for the Improvement of Child Support Litigation Technology
http://www.geocities.com/CapitolHill/5910/index.htmlJanuary 28, 2000
Roger F. Gay, Project Leader (rogerfgay@yahoo.com)
James Johnston, Kansas CS commissioner, (Johnst0J@kochind.com)
Hans Dutt, Economist (HDutt@hcfa.gov)
Kentucky Constitution; Section 2: Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.
Contents:
Summary of Recommendation
Project for the Improvement of Child Support Litigation Technology
Introduction
Answers to some frequently asked questions
Federal Program Requirements
TITLE 45--PUBLIC WELFARE AND HUMAN SERVICES
Analysis of Kentucky Child Support Law - KRS 403.211
Recommendations for Improvement
Model Child Support Statute
Additional references
Summary of Recommendation
The legislative is the only branch that can define the rational basis for child support awards in statute. Without this critical step in legal construction, the state cannot establish a rational basis for the award of child support. It is therefore essential that the legislature provide the rational basis for child support awards in the child support statute. PICSLT recommends that the rational basis for child support awards in Kentucky correspond to the three principles presented in this document.
Project for the Improvement of Child Support Litigation Technology
Project for the Improvement of Child Support Litigation Technology (PICSLT) is an R&D project that focuses on the science, engineering, and application of child support guidelines. Project work began in 1989 with investigations at Intelligent Systems Research Corporation and has continued as an independent project since 1994. The internet web site for the project is located at, http://www.geocities.com/CapitolHill/5910/index.html
The project invites interaction with other researchers interested in child support science and technology and those who are seriously interested in legal reform, including child support guideline review commissions. Project work is non-partisan, non-gender oriented, and not affiliated with special interest groups. Progress has been made on the science of child support decision making since the federally mandated presumptive use of child support guidelines began in 1989. International interest is also invited.
Note: Review of KRS 403.210-213. Commentary focused on 403.211
Introduction
States have to a very great extent developed their child support laws and guidelines to conform with the recommendations of a single federal consultant who wrote a report in the mid 1980s. Two federal organizations, the National Center for State Courts and the United States Office of Child Support Enforcement provided support for Policy Studies, Inc. (PSI) According to its author, the PSI model was designed to increase child support orders by 250% from what they had been under traditional child support law. The PSI model is known today as the Income Shares model.
A second model, first adopted in Wisconsin, was proposed by Professor Irwin Garfinkel as a result of international studies on child support conducted in cooperation with the Wisconsin Institute for Research on Poverty. The percent-of-income formula was developed in socialist / communist countries to conform with simple wealth sharing strategies. It is still used in Russia today, and can be found as Article 81 of the Russian Family Law Code.
PICSLT is the only project in existence that has sustained a long-term effort on improving the science and technology of child support guidelines. During the early part of 1990s, work focused on continued development of traditional guidelines. Child support guidelines had been developed by local courts and bar associations to assist in uniform and objective application of child support law. Guidelines had not however, been developed to the extent that their use would be appropriate as a rigid presumptively correct calculator for all child support awards.
By 1994, PICSLT was presenting new developments in the mathematics of child support calculation. Of particular significance was the development of an explicit mathematical method for calculating the standard of living adjustment that traditional law allowed. Prior to this basic scientific advancement, no explicit theory for adjusting standard of living via a child support award existed. Therefore, no guideline had been conceived that did not either ignore the standard of living adjustment or treat it arbitrarily.
The limited influence of open debate and lack of conscientious effort to improve child support law simplifies the process of pointing out the flaws. The popular models differ significantly from the guidelines developed by judges and bar associations to conform with traditional statutes. These problems range from lack of correspondence to any rational basis for making an award to errors in the technical analysis performed by PSI. We have had years to understand the problems. The fact that most states have not corrected them leaves us repeating criticisms time and time again.
In the past, PICSLT has spent quite a bit of time dealing with issues that could be answered once and for all. For example, the PSI recommendation to adjust the tables for the age of children was not correct. The underlying study speculated that spending on children increases with the age of children, only because statistically, parental income increases as children get older. If the parents' income is used in the support calculation, the increase is automatic.
PICSLT finds some economy in presenting an initial short analysis of state child support laws. The project has for years responded to questions from child support commission members, interest groups, and individuals. It is easier to provide one general overview that tells them all where they need to start. For this reason, an initial review of Kentucky child support law is provided below. For comments on the process of review, see Initial findings on review of West Virginia child support law with recommendations for improvement, available at the PICSLT web site.
The following list provides answers to a few frequently asked questions.
According to federal statute, the purpose of use of guidelines is to assure a just and appropriate award in each case. The purpose of the required review is to assure that use of guidelines results in an appropriate award in each case. Government agency representatives often express a desire for somewhat extreme levels of uniformity and simplicity; but the legal mandate is for a just and appropriate award in each case. In response to federal mandates for presumptive use of child support guidelines, most states have eliminated the rational basis for child support awards. (See discussions below.) But this does not meet federal requirements. The National Center for State Courts has never conducted extensive economic studies leading to a clear and concrete understanding of what the numbers in the table should be. The numbers in tables associated with the commonly used Income Shares model are random in relation to children's post-divorce needs. There is no scientific basis for the belief that child support awards can only be made arbitrarily, or "subjectively." Much progress has been made in research on child support decision modeling, corresponding to objective criteria. Fundamentals are well understood. Doing what other states have done will not solve the problem. The federal government provided one primary source for "technical assistance" to states in developing their guidelines. As a result, all states are doing approximately the same thing. Do not adjust table values or use multiplication factors related to the age of children. The inference that spending on children increases with age is based directly on the fact that parental income increases at the same time. Guidelines increase awards in relation to income. Therefore the age adjustment happens automatically. Do not multiply the basic table amount (by 1.5 for example) before calculating credit for shared parenting time. This increases the amount that will be sent to the recipient in consideration of expenses borne by the payer. (Details on calculating visitation and shared parenting credits are provided in reports at the PICSLT web site.) The parent who is ordered to pay child support, pays the same expenses directly during visitation and shared parenting periods. Direct payments are another way of paying "child support." Insufficient credit for visitation and shared parenting results in transfer payments to the recipient parent that are unrelated to support of children. (There are two reports on calculating visitation and shared parenting at the PICSLT web site. If award amounts do not accurately reflect costs and circumstances, this will translate to many unwanted and "perverse" side effects. (Children not getting enough support, excessive litigation, family breakup, poor contact with the paying parent, etc.)
Federal program requirements
The Family Support Act of 1988 established a requirement for periodic review and evaluation of all state child support guidelines.
There has been no objective, detailed criteria for determining whether guidelines meet the requirements of federal law. The Family Support Act provided general criteria for the application of child support guidelines. . . . , and shall be reviewed at least once every 4 years to ensure that their application results in the determination of appropriate child support award amounts In order to meet the requirements for application of child support guidelines, states must assure that calculated awards are just and appropriate. When an award is calculated for a particular case, there should be objective criteria for determining whether the award is just and appropriate. What is "just?" What is "appropriate?" Federal law is silent on the essential details. There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case. Litigants trying to prove that the application of a child support guideline is "unjust" or "inappropriate" in their case have been asked to do so without knowing what just and appropriate means. The same technical problem is faced by child support guideline committees who must attempt to review their guidelines to determine whether "their application results in the determination of appropriate child support award amounts."
TITLE 45--PUBLIC WELFARE AND HUMAN SERVICES
PART 302--STATE PLAN REQUIREMENTS
Sec. 302.56 Guidelines for setting child support awards.
(a) Effective October 13, 1989, as a condition of approval of its State plan, the State shall establish one set of guidelines by law or by judicial or administrative action for setting and modifying child support award amounts within the State.
(b) The State shall have procedures for making the guidelines available to all persons in the State whose duty it is to set child support award amounts.
(c) The guidelines established under paragraph (a) of this section must at a minimum:
(1) Take into consideration all earnings and income of the absent parent;
(2) Be based on specific descriptive and numeric criteria and result in a computation of the support obligation; and
(3) Provide for the child(ren)'s health care needs, through health insurance coverage or other means.
(d) The State must include a copy of the guidelines in its State plan.
(e) The State must review, and revise, if appropriate, the guidelines established under paragraph (a) of this section at least once every four years to ensure that their application results in the determination of appropriate child support award amounts.
(f) Effective October 13, 1989, the State must provide that there shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the guidelines established under paragraph (a) of this section is the correct amount of child support to be awarded.
(g) A written finding or specific finding on the record of a judicial or administrative proceeding for the award of child support that the application of the guidelines established under paragraph (a) of this section would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case, as determined under criteria established by the State. Such criteria must take into consideration the best interests of the child. Findings that rebut the guidelines shall state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines.
(h) As part of the review of a State's guidelines required under paragraph (e) of this section, a State must consider economic data on the cost of raising children and analyze case data, gathered through sampling or other methods, on the application of, and deviations from, the guidelines. The analysis of the data must be used in the State's review of the guidelines to ensure that deviations from the guidelines are limited.
(Approved by the Office of Management and Budget under control number 0960-0385)
[50 FR 19649, May 9, 1985; 50 FR 23958, June 7, 1985, as amended at 51 FR 37731, Oct. 24, 1986; 56 FR 22354, May 15, 1991]
Analysis of Kentucky Child Support Law - KRS 403.211
KRS 403.211 (2) explicitly states that the child support guidelines "shall serve as a rebuttable presumption for the establishment or modification of the amount of child support."
In addition,
(3) "A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption and allow for an appropriate adjustment of the guideline award if based upon on (1) or more of the following criteria;
(a) a child's extraordinary medical or dental needs;
(b) A child's extraordinary educational, job training, or special needs;
(c) Either parent's own extraordinary needs, such as medical expenses;
(d) The independent financial resources, if any, of the child or children;
(e) Combined parental income in excess of the Kentucky child support guidelines;
(f) The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. However, no such agreement shall be the basis of any deviation if public assistance is being paid on behalf of a child under the provisions of Part D of Title IV of the federal Social Security Act; and
(g) Any similar factor of an extraordinary nature specifically indentified by the court which would make application of the guidelines inappropriate.(4) "Extraordinary" as used in this section shall be determined by the court or its discretion."
The presumptive guideline amounts are not rebuttable based on design analysis - legal construction.
The simplest case illustrating that the guidelines are not rebuttable is one in which no aspect of the circumstances is deemed "extraordinary." Although what is "extraordinary," according to 4 shall be determined by the court at its discretion, 3a-e provide definitive examples. There is no where else for courts to go except 3-g to find a basis for determining what is unjust or inappropriate. Item 3-g says that the court may determine that the application of the guidelines would be inappropriate if "any similar factor of an extraordinary nature" is "specifically identified."
It is presumed as a matter of statute, that the guidelines themselves are never wrong. Save for extraordinary circumstances thought different than those considered in the design of the guideline, there is no basis for rebuttal. Even when extraordinary circumstances exist, the only allowance is for adjustment in consideration of the extraordinary element in those circumstances, with no basis for considering that the initial presumed amount may be unjust or inappropriate.
Federal law (and we believe Constitutional law) defines a different standard. The amount calculated by use of the guideline shall be rebuttable in every case, regardless of how ordinary -- this is the essence of due process. The purpose of the standard is not simply to adjust the basic presumptive award in extraordinary circumstances. It is to protect each and every litigant against flawed design and unjust or inappropriate presumptions.
If we lean the opposite direction -- probably too far -- in interpreting the discretion of the courts, we end up with another equally improper result. If we take 4 to mean that courts may interpret "extraordinary" in any way they wish, we can logically extend its use. Any individual judge may decide that any circumstance, regardless of how ordinary, is "extraordinary" in comparison with the presumptions built into the design of the guidelines. By this, a judge would mean that the guideline is basically wrong, and therefore deviations are required in the vast majority of cases.
If we apply the second interpretation, the result is worse than it would be if we returned to child support law prior to the introduction of statewide guidelines. Since the statute provides no rational basis for the amount of an award, each and every judge would have complete discretion in deciding not only how child support should be calculated but also what child support is. This would leave the job of completing the statute to each judge and produce results that are both arbitrary and capricious; again violating Constitutional requirements.
Regardless of which way we interpret, the fundamental flaw is the same. The statute provides no rational basis for the amount of an award. It does not even tell what is meant by "child support." It only points to the guideline and enumerates certain situations that may be "extraordinary." We don't really know from the statute, what "extraordinary" means because there is no basis in the statute for understanding what ordinary is. If a parent wishes to challenge the guideline result on the basis that the result is unjust or inappropriate, they must do so without knowing what "just" or "appropriate" means.
There is either no possibility of correcting an award to compensate for inadequacy in the design of the guideline, or the process of attempting to do so is a crapshoot.
It is apparent that KRS 403.211 was constructed simply by duplicating portions of the federal regulations and attempting to implement requirements using a minimalist approach. But federal statutes and regulations are insufficient implementations of themselves. Federal law requires states to properly implement requirements as a condition for federal funding. The federal statutes and regulations themselves do not provide sufficient information for completing the task. It is up to each state to invent a sufficient solution, which meets federal requirements (if the state so chooses) as well as all Constitutional requirements.
Kentucky uses an Income Shares type of guideline based on the PSI model. The Child Support Enforcement Amendments of 1988 established funding for "technical assistance" to states in the development of their child support guidelines. In response to this, the National Center for State Courts and the US Office of Child Support Enforcement hired Robert G. Williams of Policy Studies Inc. (PSI) to write a report.
Robert Williams is a child support collection entrepreneur whose company receives a percent of amounts paid as remuneration for subscriber services. He has no great expertise in design or legal construction. Although superficially appearing to correspond to some elements of traditional child support law, his child support guideline model has never been shown to correspond to any set of principles for the award of child support. His guideline model, known as Income Shares, corresponds neither to traditional child support law nor to the recommendations of the committee assigned to establish principles to guide his work.
For a more detailed critique of William's model, see "The Child Support Guideline Problem," available on the World Wide Web at: http://adrr.com/law1/csp11.htm
The PSI Income Shares guideline provides results that are unjust and inappropriate in most cases. When and if they give a just and appropriate result, it is purely a matter of coincidence and not by design.
Recommendations for Improvement
The Kentucky statute needs to provide a rational basis for the amount of an award. It should start by defining what is meant by "child support." The "rational basis" provides each parent with a basis for deciding whether or not the result of a guideline is just and appropriate. But this applies not only to parents. Neither a judge nor the smartest attorney can call upon what is not there.
The problem also extends to the federal requirement for states to review their guidelines at least once every four years to assure that their use results in appropriate awards in each case. Without a legislated rational basis that is applied in each case, providing the basis for testing the guidelines, any review committee is faced with the same problem as judges, attorneys, and parents. They have no basis for determining whether guideline results are appropriate. The law does not tell them what appropriate is. Kentucky law does not even tell them what "child support" is.
PICSLT has made a significant effort in child support decision modeling. The process of developing a child support decision model is significantly different than the process that produced the PSI model or the percent model used in Wisconsin. It is more similar to the effort of family court judge Melson in producing the original (mid 1980s) version of the Delaware formula and also follows the in-depth legal research underlying Maurice Franks' method of calculating child support. (How to Calculate Child Support, Maurice Franks, Case & Comment, January-February, 1981.)
The process of developing a child support decision model begins with a stronger and more complete foundation than typical child support guideline model development. The more sophisticated process and design is considered essential. "Guidelines" were developed prior to the mandate to create formulae that perform the complete task of determining an award and presume the result correct. Although the term "guideline" is still used, even in federal requirements, it is clear that the requirements for their use have changed.
Franks, Melson, and PICSLT all began with traditional child support statutes and case law. The opinion formed by PICSLT research is that there are three fundamental principles that provide the necessary and sufficient basis for all child support awards. They can be stated as follows.
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.The first principle defines what is meant by "child support." Without a definitive statement all the rest would be futile.
The second explains who must provide child support, which is also essential. The PICSLT version uses what is known as the "equal duty principle." Several legal commentors believe that the equal duty principle is Constitutionally mandated. It does not mean that each parent must pay an equal amount. It says that both parents have an equal duty, and tells the courts to enter the decision process without prejudice with regard to either.
The third principle says that child support orders are to be fashioned in relation to the relevant circumstances of the family. Without consideration of circumstances, the first two principles alone might indeed mean that each parent must pay an equal amount. The third principle allows courts to consider the relative ability of each parent to provide financial support among other things. By "relevant" it is meant that courts do not have to consider irrelevant circumstances.
The effort PICSLT has gone to in applying these principles shows that a guideline need not be overly complex in order to correspond. It is to the advantage of simplicity in application that guidelines are sophisticated enough to account for the major elements and processes involved in making a child support decision; such as the presumed costs, accounting for visitation time, and the standard of living adjustment. Each element of the guideline should be clearly and rationally related to both evidence and the rational basis provided in statute.
However, we have found that all circumstances can be dealt with using a very limited set of general functions to make adjustments. The "types" of circumstantial adjustments needed appear to exist in limited variety even when we consider the widest possible range. "Sophisticated" in our view does not mean complex in application. We find that less sophisticated models, simpler models such as the percent of income and traditional Income Shares, do not allow a rational understanding in relation to evidence and principles and are therefore much more complicated or impossible to apply correctly in individual cases.
The model statute below is one way to apply all three principles provided above. It meets or exceeds federal requirements.
The legislative is the only branch that can define the rational basis for child support awards in statute. Without this critical step in legal construction, the state cannot establish a rational basis for the award of child support. It is therefore essential that the legislature provide the rational basis for child support awards in the child support statute. PICSLT recommends that the rational basis for child support awards in Kentucky correspond to the three principles presented in this document.
Model Child Support Statute
Model Child Support Statute Based on OREGON REVISED STATUTE, ORS 107.105, 1989
Whenever the court grants a decree of marital annulment, dissolution or separation, it has power further to decree as follows;
For the recovery from the party not allowed the care and custody of such children, or fom either party or both parties if joint custody is decreed, such amount of money, in gross or in installments, or both, as constitutes just and proper contribution toward the support and welfare of such children. The court may at any time require an accounting from the custodial parent with reference to the use of the money received as child support. The court is not required to order support for any minor child who has become self-supporting, emancipated or married, or who has ceased to attend school after becoming 18 years of age. In determining the amount of the child support, the court shall consider the economic needs of the children and determine payment by the parents in proportion to their respective ability to pay on the basis that each parent has an equal duty to provide financial support for their children. There shall be in any proceeding for determination of the child support award, a presumption that the [child support schedule] provides the proper award. Each presumptive award is subject to review at the request of either party. The court shall determine whether the presumptive award is just and appropriate under the terms of this statute and others in force. In all cases, the court shall provide a written statement listing the relevant considerations and pertinent facts related to its' decision. In making its' determination, the court shall consider, but not limit itself to, the following factors:
(A) The financial resources of both parents;
(B) The ability of each parent to support themselves;
(C) The cost of day-care if the custodial parent works outside the home;
(D) The expenses attributable to the physical, emotional and educational needs of the child;
(E) The tax consequences to both parties resulting from spousal support awarded, if any, and the child support award, and determination of which parent will claim the child as a dependent;
(F) Expenses in the exercise of visitation;
(G) The existence of children of other relationships; and
(H) Expenses arising from other factors as the court may determine relevant in a particular case.
Additional references:
Material on design and analysis of child support guidelines is available at the project web site. Browse the web site for all that is available there. Project for the Improvement of Child Support Litigation Technology http://www.geocities.com/CapitolHill/5910/index.html
A subset of the reports and articles is listed here.
Why Do Current Child Support Guidelines Need Improvement (Fathering Magazine, Jan. 2000)
http://www.fathermag.com/001/child-support/Accounting for visitation and shared parenting
http://www.geocities.com/CapitolHill/5910/credit.htmlDesign Study: Will fair share adjustment for shared parenting and visitation lead to more intense argument over the amount of parenting time granted to the non-primary parent?
http://www.geocities.com/CapitolHill/5910/credit_effect.htmlThe Child Support Guideline Problem
http://adrr.com/law1/csp11.htmThe Alimony Hidden in Child Support (Fathering Magazine, Sept. 1999)
http://www.fathermag.com/906/alimony/Rational Basis is the Key Focus in Emerging ‘Third Generation’ Child Support Technology (CRC National Conference paper presented on the web by In-sight Collection: "Tracking the Dismantling of the American Family.")
http://www.geocities.com/CapitolHill/Senate/5243/guidelines.htmlNew Equations for Calculating Child Support (downloadable from another web site)
http://www.acfc.org/html/study.htmInitial review of West Virginia child support law with recommendations for improvement, September, 1999.
http://www.geocities.com/CapitolHill/5910/wv.htmlRecommendations for Improvement of Child Support Law in the State of Virginia, June, 1999
http://www.geocities.com/CapitolHill/5910/va.html