Initial Review of Michigan Child Support Law
Project for the Improvement of Child Support Litigation Technology
http://www.geocities.com/CapitolHill/5910/index.htmlFebruary 15, 2000
Roger F. Gay, Project Leader (rogerfgay@yahoo.com)
James Johnston, Kansas CS commissioner, (jjohns1043@aol.com)
Hans Dutt, Economist (hrdutt@erols.com)
CONSTITUTION OF THE STATE OF MICHIGAN OF 1963 ARTICLE I. DECLARATION OF RIGHTS
Equal Protection
Sec. 2. No person shall be denied the equal protection of the laws;Due Process
Sec. 17. No person shall … be deprived of life, liberty or property, without due process of law.
Contents:
Summary of Recommendation
Project for the Improvement of Child Support Litigation Technology
Systematic and comprehensive approach to review
Federal Program Requirements
TITLE 45--PUBLIC WELFARE AND HUMAN SERVICES
Analysis of Michigan Child Support Law - MCLA 552.15, 16, 17
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 Michigan 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.
Systematic and comprehensive approach to review
The purpose of review is to determine whether use of a state's child support guideline results in a just and appropriate child support award in each case. (P.L. 100-485, Oct. 13, 1988, Sec. 103,a-b "The Family Support Act"; 45 CFR 302.56)
In order for a reviewer or review committee to carry out this task, it is fundamentally necessary to establish what a "just and appropriate child support award" is. This can only be accomplished by review of the principles and definitions in the statutes used by courts to determine the amount of child support to be awarded in each case. The review process must then proceed as follows.
1. Review the statute that is applied to determine the amount of child support to be awarded. Does it provide a rational basis for the child support award decision? Note: The rational basis for the amount of child support awarded must be independent of the child support guideline. (See discussion of rational basis below.)
2. If a basis for each child support award decision exists, is it sufficient for the purpose of making an independent child support award decision? Will use of the basis given in statute lead to a just and appropriate award in each case?
3. Does the type of child support formulae prescribed in the state (Income shares, percent-of-income, etc.) correspond to the rational basis provided in the statute?
4. If the review passes 1-3 above, the review can proceed to the detailed level of examining the formulae and numeric information.
If the review passes only 1-2 above, suggestions for a substitute model can be made. If the review fails on either points 1 or 2, the review may not proceed until sufficient basis is established. Reviewers do not have the legal authority to define what the legislature must.
In analyzing existing statutes and guidelines, a comparison is first made between the statute providing the rational basis for a child support award and the three fundamental principles below, representing what had been established in traditional child support laws (prior to federally mandated guideline presumption).
· What is "child support"?
The statutes are checked for a primary definition explaining what "child support" is. If such a definition is found, it is compared to the traditional definition.
1. Child Support is for the care and maintenance of children.· If children are entitled to financial support, who is obligated to provide it?The first principle is straightforward definition. What is child support if not support for children?
The statutes are checked for fundamental bias in the treatment of custodial or non-custodial parents. Some traditional state statutes explicitly contained the equal duty principle.
2. Both parents have an equal duty to support their children.
The equal duty principle does not prescribe equal payment from both parents. It tells us that the court must not approach the child support decision with arbitrary bias. Working out the details of an award depends upon the needs of children and the circumstances of the parents. Some legal scholars believe this rule to be Constitutionally mandated. (The other two rules in this section might also be Constitutionally mandated.)
· What consideration shall be given to the circumstances of parents and children in making an award decision?
3. All relevant circumstantial information may effect the amount of the award.The third principle allows child support awards to be consistent with the each parent's ability to pay among other considerations. The importance of identifying this principle is that it allows awards to be tailored to circumstances. This safeguards against arbitrary application of the guidelines that will likely lead to inappropriate decisions.
If any part of the statute conflicts with any of the three principles, redefinition of the basis for the award decision would be suggested.
For further information and discussion on the basis for review, see the following at the project web site ("Project Description, Short History, and Citations" page.)
Rational Basis is the Key Focus in Emerging 'Third Generation' Child Support Technology
Recommendations for Modification of Child Support Guidelines and Reform of their Use Corresponding to the Views of the Pennsylvania Supreme Court
The Child Support Guideline Problem
New Equations for Calculating Child Support and Spousal Maintenance With Discussion on Child Support Guidelines
The Alimony Hidden in Child Support
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 Michigan Child Support Law
"The [child support] formula shall be based upon the needs of the child and the actual resources of each parent." MCL 552.519(3)(a)(vi); MSA 25.176(19)(3)(a)(vi), 42 USC 667(467)(a).
A subcommittee of the Friend of the Court Advisory Committee began work on [the Michigan child support] guideline in 1983. The subcommittee, popularly known as the Child Support Guideline Committee, extensively reviewed methodologies currently in the use for determining child support in Michigan and nationwide, held public hearings, conducted original research and received input from professional economists and other researchers. A final report was submitted to the Friend of the Court Advisory Committee in May of 1986. (From the Preface of the 2000 Michigan Child Support Formula Manual.)
But is it rebuttable?Noting that members of the public may provide input in the guideline review process, a possible scenario for correcting an unjust or inappropriate award may be constructed. A parent believes that presumptive use of the guideline led to an inappropriate award. Pointing out that the guideline provides tables, which the friend of the court (FOC) has decided represent the "needs" of his children and that the tables are constructed in relation to the income of each parent, the judge ignores the complaint.
The parent waits two years for the proper public meeting, steps up to a microphone and states the complaint. At the end of the review period, the guideline has not changed to address the problem. For the next four years, the parent studies economics and engineering, works at redesigning the guideline, and lobbies for a place on the review committee. Once on the committee, the parent proceeds to masterfully win every political argument against every opponent and the FOC accepts the parent's redesign.
After some six to seven years the parent returns to court to request the adjustment. Within months a dozen or so parents encounter problems in the new design and the cycle begins anew.
They cannot be considered sane who believe that to satisfy due process requirements.
Requirements and Specifications
PICSLT has developed mathematics corresponding to principles found in traditional child support statutes and case law. The principles applied to develop the new formula are also found in the current Arizona Revised Statute 25-320. http://www.azleg.state.az.us/ars/25/title25.htm ). The basic definitions and principles to which the guideline design conforms provide the "rational basis" for the design. The following three principles summarize those used in the PICSLT guideline.
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.If these same principles exist in a state statute applied in the determination of individual child support awards, then we could reasonably presume that the PICSLT formula provides the appropriate detailed logic for making a child support award. But presumption is not always truth.
If a litigant believes that the result is unjust or inappropriate in a particular case, he or she must also have direct access to the set or principles upon which the guideline is based to construct a logical, legally supported challenge. The rational basis must be stated in the statute that is applied in determining the amount of child support to be awarded.
Excerpt: Michigan Compiled Laws Chapter 552 Section 15 ("The statute" authorizing the award of child support.)
(2) Except as otherwise provided in this section, the court shall order support in an amount determined by application of the child support formula developed by the state friend of the court bureau. The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:
(a) The support amount determined by application of the child support formula.
(b) How the support order deviates from the child support formula.
(c) The value of property or other support awarded in lieu of the payment of child support, if applicable.
(d) The reasons why application of the child support formula would be unjust or inappropriate in the case.(3) Subsection (2) does not prohibit the court from entering a support order that is agreed to by the parties and that deviates from the child support formula, if the requirements of subsection (2) are met.
(4) Beginning January 1, 1991, each support order entered or revised and altered by the court shall provide that each party shall keep the office of the friend of the court informed of both of the following: (a) The name and address of his or her current source of income. As used in this subdivision, "source of income" means that term as defined in section 2 of the support and parenting time enforcement act, Act No. 295 of the Public Acts of 1982, being section 552.602 of the Michigan Compiled Laws.
(b) Any health care coverage that is available to him or her as a benefit of employment or that is maintained by him or her; the name of the insurance company, nonprofit health care corporation, or health maintenance organization; the policy, certificate, or contract number, and the names and birth dates of the persons for whose benefit he or she maintains health care coverage under the policy, certificate, or contract.
(5) For the purposes of this section, "support" may include payment of the expenses of medical, dental, and other health care, child care expenses, and educational expenses. If a support order is entered, the court shall require that 1 or both parents shall obtain or maintain any health care coverage that is available to them at a reasonable cost, as a benefit of employment, for the benefit of the minor children of the parties and, subject to section 16a, for the benefit of the parties' children who are not minor children. If a parent is self-employed and maintains health care coverage, the court shall require the parent to obtain or maintain dependent coverage for the benefit of the minor children of the parties and, subject to section 16a, for the benefit of the parties' children who are not minor children, if available at a reasonable cost.
The presumptive guideline amounts are not rebuttable based on design analysis - legal construction.
"Except as otherwise provided in this section, the court shall order support in an amount determined by application of the child support formula developed by the state friend of the court bureau."
The statute attempts to fulfill federal requirements with a minimal statement. No rational basis for the award of child support is provided in the statute. A "rational basis" for the award of child support would consist of statements that at least define what "child support" is. In order to provide a sufficient uniform basis for the award of child support some set or principles and factors are needed. For example, PICSLT has concluded that these three principles are necessary and sufficient. (Explained in the recommendation section below.)
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 Michigan statute provides no definition whatsoever and no set of principles to provide a uniform basis for the determination of awards. This creates two very serious problems. The first has to do with each parent's right to challenge the result of the guideline.
The Michigan statute itself allows that; "The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate."
A parent wishing to challenge the presumptive amount on the basis that it is "unjust or inappropriate" must attempt to do so without any statutory provisions indicating what "just" or "appropriate" means.
The right of a parent to challenge the presumptive guideline is both consistent with federal statute and constitutional law. In order to challenge the result, one must rely on definitions and principles that are independent of the presumption embodied in the guideline itself. However, the Michigan statute provides no independent rational basis whatsoever for the determination of the amount of an award. This leaves litigants with no legal basis for challenging the specific amount determined by the guideline.
It has been argued in Michigan that the authority given to the court to deviate from the guideline is sufficient. It is clearly apparent however, that the power of a judge is not equivalent to the right of a litigant when powers are not properly delegated among the branches of government. This is such a basis difference between the need to appeal to a person and the ability make an appeal based upon the law.
Individual judges may determine that the guideline is poorly designed and prone to error of find it insufficient to account for common variations in circumstances. 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.
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. There is no way to accomplish this purpose without including an independent statement of the rational basis upon which award amounts are determined in statute. The legislature is the only body with the authority to write the law.
The second problem stemming from the lack of statutory basis is in meeting the federal requirement for states to review their guideline at least once every four years to assure that its use results in an appropriate award in each case. The Michigan Friend of the Court Bureau (FOC), is in a worse position than a litigant. They must try to determine if use of a guideline will result en masse in appropriate awards, which in itself has not yet been shown to be possible. But they must also do so without any statutory definition telling them what an appropriate award is.
What does a child "need"? In traditional case law, the courts have addressed the question of need by reviewing the statutory definition and purpose of "child support." (For example, Smith v Smith, 290 Or 675, 626 P2d 342, 344 (1981)). Even the instructions provided for developing the guideline, which do not assist a parent in litigation, are not sufficient. Aside from considering the "needs" of children, they are to consider the "actual resources of each parent." In what way?
The statute says that; "Except as otherwise provided in this section, the court shall order support in an amount determined by application of the child support formula developed by the state friend of the court bureau." By failing to state the basic definitions and principles that shall be applied in determining the amount of each child support award, we in addition believe that the legislature has unconstitutionally transferred its authority to create law to the FOC.
Recommendations for Improvement
The Michigan 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. Michigan 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 Michigan correspond to the three principles presented in this document.
(Note: In a recent review, we found that these principles are also expressed in the current Arizona Revised Statutes 25-320. http://www.azleg.state.az.us/ars/25/title25.htm )
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 claimthe 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.htmlInitial Review of Kentucky Child Support Law, January 28, 2000
http://www.geocities.com/CapitolHill/5910/kyreport1.htmlComment related to Title 25, section 320 of the Arizona Revised Statutes, January 29, 2000
http://www.geocities.com/CapitolHill/5910/ARReview1.html