Ohio Revised Code http://orc

Initial findings on review of Ohio child support law
with recommendations for improvement
Project for the Improvement of Child Support Litigation Technology
http://www.geocities.com/CapitolHill/5910/index.html
Roger F. Gay and James R. Johnston
August 16, 2000

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 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.

Summary
Ohio child support law is logically inadequate for the purpose of determining a "just and appropriate" amount of child support to be ordered. There is insufficient basis for complying with at least two federal requirements; reviewing guidelines to assure that their use results in an appropriate award in each case, and that presumptive award amounts are rebuttable. The lack of sufficient basis supporting the due process requirement raises obvious constitutional questions. The Code should be modified to provide a rational basis for child support decisions.
Key recommendations are;

A rational basis for awarding a particular amount of child support in each case must be given in statute.

The primary purpose of the use of a child support guideline is to assure a just and appropriate child support award in each case.

A systematic review process needs to be implemented to ensure that the child support formula conforms to the rational basis.

The guideline used by the state should be designed to correspond to a rational basis provided by the legislature.

Table of Contents
Systematic and comprehensive approach to review
Federal program requirements
Excerpts from Ohio Child Support Law
Analysis of Ohio Child Support Law
Model Child Support Statute

Systematic and comprehensive approach to review
This analysis is based on research performed by Project for the Improvement of Child Support Litigation Technology. PICSLT has continued development of the mathematics of child support decision making and has produced a more complete model than has previously existed. The formulation of the model is based on established, traditional (pre-1989) child support law.
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 that have long since been established for the award of child support. The particular description given here along with the assertion that these three principles provide a necessary and sufficient basis for determination of just and appropriate child support awards, is given the title, PICSLT Standard Basis.

· What is "child support"?
The code is 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.

The first principle is straightforward definition. What is child support if not support for children?

· If children are entitled to financial support, who is obligated to provide it?
The code is 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; both parents enter the process with equal rights and responsibilities. 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. The guideline mathematics would then be checked to see if it conforms to the rational basis provided by statute. If the statute does not contain a sufficient rational basis, the review process ends with a recommendation that the statute needs to be strengthened. It is impossible to determine whether guidelines conform to a rational basis when none exists.
A major advantage of the PICSLT model is that it is complete enough to make a reasonable differentiation between child support and alimony. Some guidelines are so far off that identifying the existence of alimony in child support awards can be done with great certainty. (A project paper is available which provides mathematics for awarding child support and alimony together in proper proportions.) Review may also consider the award of alimony.
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.
. . . , 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 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. 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. 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.
If a sufficient rational basis is not provided in statute, litigants trying to prove that the application of a child support guideline is "unjust" or "inappropriate" in their case must try to do so without knowing what just and appropriate means. The same technical problem is faced by child support guideline committees, which must attempt to review 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]

Excerpts from Ohio Child Support Law
Section 3113.215
Ohio Revised Code http://orc.avv.com/
Section 3113.215, B(1)
In any action in which a child support order is issued or modified …
In any action or proceeding in which the court determines the amount of child support that will be ordered to be paid pursuant to a child support order or when a child support enforcement agency determines the amount of child support that will be paid pursuant to an administrative child support order issued pursuant to sections 3111.20, 3111.211, and 3111.22 of the Revised Code, the amount of child support that would be payable under a child support order, as calculated pursuant to the basic child support schedule in division (D) of this section and pursuant to the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, is rebuttably presumed to be the correct amount of child support due, and the court or agency shall order that amount to be paid as child support unless both of the following apply with respect to an order issued by a court:
(a) The court, after considering the factors and criteria set forth in division (B)(3) of this section, determines that the amount calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, would be unjust or inappropriate and would not be in the best interest of the child.
(b) The court enters in the journal the amount of child support calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, its determination that that amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting that determination.

Section 3113.215, B(2)
(c) The court shall not order an amount of child support that deviates from the amount of child support that would otherwise result from the use of the basic child support schedule and the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, unless both of the following apply:
(i) The court, after considering the factors and criteria set forth in division (B)(3) of this section, determines that the amount calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, would be unjust or inappropriate and would not be in the best interest of the child;
(ii) The court enters in the journal the amount of child support calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, its determination that that amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting that determination.

Section 3113.215, B(3)
(3) The court, in accordance with divisions (B)(1) and (2)(c) of this section, may deviate from the amount of support that otherwise would result from the use of the schedule and the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, in cases in which the application of the schedule and the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, would be unjust or inappropriate and would not be in the best interest of the child. In determining whether that amount would be unjust or inappropriate and would not be in the best interest of the child, the court may consider any of the following factors and criteria:
(a) Special and unusual needs of the children;
(b) Extraordinary obligations for minor children or obligations for handicapped children who are not stepchildren and who are not offspring from the marriage or relationship that is the basis of the immediate child support determination;
(c) Other court-ordered payments;
(d) Extended times of visitation or extraordinary costs associated with visitation, provided that this division does not authorize and shall not be construed as authorizing any deviation from the schedule and the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, or any escrowing, impoundment, or withholding of child support because of a denial of or interference with a right of companionship or visitation granted by court order;
(e) The obligor obtains additional employment after a child support order is issued in order to support a second family;
(f) The financial resources and the earning ability of the child;
(g) Disparity in income between parties or households;
(h) Benefits that either parent receives from remarriage or sharing living expenses with another person;
(i) The amount of federal, state, and local taxes actually paid or estimated to be paid by a parent or both of the parents;
(j) Significant in-kind contributions from a parent, including, but not limited to, direct payment for lessons, sports equipment, schooling, or clothing;
(k) The relative financial resources, other assets and resources, and needs of each parent;
(l) The standard of living and circumstances of each parent and the standard of living the child would have enjoyed had the marriage continued or had the parents been married;
(m) The physical and emotional condition and needs of the child;
(n) The need and capacity of the child for an education and the educational opportunities that would have been available to the child had the circumstances requiring a court order for support not arisen;
(o) The responsibility of each parent for the support of others;
(p) Any other relevant factor.
The court may accept an agreement of the parents that assigns a monetary value to any of the factors and criteria listed in division (B)(3) of this section that are applicable to their situation.

Section 3113.215, B(4)
(4) If an obligor or obligee under a child support order requests the court to modify the amount of support required to be paid pursuant to the child support order, the court shall recalculate the amount of support that would be required to be paid under the support order in accordance with the schedule and pursuant to the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, and if that amount as recalculated is more than ten per cent greater than or more than ten per cent less than the amount of child support that is required to be paid pursuant to the existing child support order, the deviation from the recalculated amount that would be required to be paid under the schedule and the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, shall be considered by the court as a change of circumstance that is substantial enough to require a modification of the amount of the child support order.

Analysis of Ohio Child Support Law
The purpose of review of a child support guideline is to assure that its use results in a just and appropriate award in each and every case. According to federal law, the result of a state's guideline calculation is to be considered the correct amount to be awarded, but the presumptive amount is rebuttable. Parents are entitled to a just and appropriate child support decision. The state has a legal obligation to provide and support the process for determining such awards. Each state is required to review their guideline at least once every four years to assure that its use results in an appropriate award in every case.
Any judgment must be made by comparison. In reviewing a child support guideline, it is essential to compare the logic and numeric information in the guideline with principles and definitions given elsewhere in the statute. Those principles and definitions define the rational basis for determining the appropriate amount of child support to be awarded. An objective determination can be made about whether the guideline corresponds to the rational basis; assuming that the rational basis itself supports "just and appropriate" award decisions. If no rational basis exists in statute, there is no basis for comparison and therefore no basis for the required review of the guideline.
In an individual case in which a parent challenges the presumptive result, we would expect the principles and definitions given in statute to be applied in relation to evidence. The challenger would argue that the guideline does not correspond to the statutory rational basis, given one or more particular details of the family's circumstances. If a litigant shows this to be true, a deviation from the presumptive amount is required. It might then be efficient to modify the guideline to improve its correspondence with the rational basis, avoiding the need to repeatedly litigate for correction of a known problem.
We would also like to check to see if the "rational basis" given in statute will lead to just and appropriate child support award decisions in every case. The three principles given above provide a necessary and sufficient rational basis for child support award decisions, entitled the PICSLT Standard Basis. The Standard Basis developed through very thorough study that reached from the fundamentals of the child support decision to many detailed considerations with mathematical accuracy that began with traditional child support statutes and case law. (An appellate court may of course review a statutory rational basis without us.)
The Ohio statute was found to provide an insufficient rational basis for determination of a child support award. What is "child support" in Ohio? What is the purpose of a child support award? How would we know if a decision in a particular case is "just and appropriate?" The statute tells us what is to be done but not why or to what effect. It does not provide a rational basis for the determination of a child support award amount.
The statute tells us that the amount resulting from the guideline calculation is presumptively correct. Part B(1) tells us that "In any action or proceeding in which the court determines the amount of child support that will be ordered …, the amount of child support …, as calculated pursuant to the basic child support schedule …, is rebuttably presumed to be the correct amount of child support due …"
But the statute does nothing to help us understand what "correct" actually is. This lack of any definition for the very object of the statute, the lack of stated purpose of a child support award, is extremely serious. This part of the analysis, which I have done in several states, tends to make me feel as though I'm living in an Arthur Conan Doyle novel. I believe it was Sherlock Holmes who pointed out that if you want to hide something where no one will find it, put it out in the open. No one will look for it there.
Courts have chosen to apply a lesser standard when considering the constitutionality of family law. It is possible today for courts to accept the use of statutes unless they are completely irrational and arbitrary. It perplexes me that that any court would reject a claim of irrationality based on the fact that rationality does not exist. It does not exist in the Ohio child support statute, which provides no rational basis at all for a child support award decision. I cannot avoid the conclusion that the schedule produces purely arbitrary results. There is no legal basis upon which we can call them anything else.
The statute also tells us that the "court …, may deviate from the amount of support that otherwise would result from the use of the …, in cases in which the application of the schedule …, would be unjust or inappropriate and would not be in the best interest of the child." One cannot formulate a logical argument against the presumptive award based on the statute. Part B(3) of the statute provides factors that may lead to a deviation from the presumptive award. This is not the same, as the criteria for rebuttal required by federal regulation. The deviation criteria only partially fulfill the requirement.
The allowance of deviation from the basic calculation deals with circumstances that are not part of the guideline designer's definition of what is basic. If the schedule is constructed without a reduction to offset visitation for example, a deviation from the basic standard can account for visitation. This is merely an extension to the "basic" standard calculation to account for another mitigating factor in the award determination. In fact, by its inclusion in statute it is part of the whole standard.
A rebuttal may include an assertion that the standard is wrong, not merely that the set of factors in the basic calculation is incomplete. For example "extraordinary circumstances" may lead to a reduction in the award of $100. If the presumptive basic award is $1000, a minus $100 deviation leads to a final result is $900. But a parent may believe that a just and appropriate basic amount would be only $500 leading to a final result of $400. At present, there is no basis in Ohio law for deciding which view is actually correct.

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 from 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.