Acknowledgements

The following individuals and groups contributed to the creation of this report

Jim Johnston, Kansas Supreme Court's Child Support Guidelines Advisory Committee.
Gregory J. Palumbo, Ph.D., Policy Analyst, American Fathers Coalition
David A. Roberts, President, American Coalition for Fathers & Children
Pearle Harbour, President/Founder of R.E.A.L. Women USA
 
 

Overview

This report includes;

1. commentary in support of the recommendations. (1)
2. Virginia Code § 20-108.1  (2)
3. Federal Regulation 45 CFR 302.56 Guidelines for setting child support awards. (3)
4. Recommended revised Virginia Code § 20-108.1 (4)

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.

Please note that item 3 is already encoded in Virginia law;

This report contains the current version of Virginia Code Code § 20-108.1 and the federal regulation pertaining to the character and application of child support guidelines related to federal program funding. (45 CFR 302.56)

Several other documents are provided in support. These include;

1. A report in support of the rational basis for awards, in the context of a Pennsylvania Supreme Court decision, and with reference to a similar decision by the Oregon Supreme Court.
2. Full text decision by the Oregon Supreme Court.
3. A paper by child support experts, Roger F. Gay and Gregory Palumbo setting out the need for the rational basis and providing other information.
4. A paper pertaining to the mathematics of child support corresponding to the principles set forth above.

Commentary

According to Virginia’s child support law,

"The court's decision in any such proceeding shall be rendered upon the evidence relevant to each individual case."

And,

"In order to rebut the presumption, the court shall make written findings in the order, … that the application of such guidelines would be unjust or inappropriate in a particular case."

Federal law requires that the state’s child support guidelines;

" shall be reviewed at least once every 4 years to ensure that their application results in the determination of appropriate child support award amounts."

A man was once asked for directions by a traveler. The man replied that the traveler only needed to proceed down the road to the east for five miles. The traveler easily reached his destination in little over five minutes.

Told that story today, you would only by the most impossible coincidence arrive at the same destination. The directions are quite simple, but you obviously have no idea where the man was standing when he gave them. You cannot derive directions yourself by any other means, because you have not been told where the traveler intended to go.

The Virginia Code (See appendix 1) clearly sets out criteria for use in rebuttal to the presumptive guideline amount. Yet if fails to provide the fundamental definition of "child support" and the basic principles upon which an award is to be made. Litigants and judges are unable to determine whether the presumptive amount is appropriate because there is nothing in the statute that tells them what "appropriate" is.

It is clear that there is no way to validate or contest the presumptive guideline amount. The guideline in total is not self-constructing. That is to say, there is no way to derive an appropriate formula in the absence of a clearly and sufficiently defined child support policy. In the absence of a clearly and sufficiently defined policy basis, any formula is purely arbitrary and therefore use of any presumptive amount determined by the guideline results in an arbitrary child support award.

The arbitrary nature of the guideline can easily be seen in the debate on the numeric table. Some people think these numbers should reflect only the additional amount a single mother need spend to include children in her household. Others think every child is entitled to an equal share of both their parents’ income. And some people think the right answer is in between. That is a huge and significant range of opinion.

But no one supporting any one view has any basis for killing off any of the other views. So long as the legislature does not sufficiently define the policy upon which child support awards are based, the "responsibility" parents are forced to accept will continue to be a completely arbitrary one. That certainly defies any reasonable conception of due process of law.

Virginia law allows consideration of agreement between parents on the child support amount. It appears as though parental agreements account for the great bulk of "deviations" from presumptive child support in the state. However, for those few cases in which a judge may have decided in favor of one parent in an adversarial process, such deviation is clearly as arbitrary as the presumptive amount itself.

It is recognized that administrative agencies are reluctant to support improvement in the rebuttal process, contradicting a majority in the judicial branch who favor greater discretion. The fears of administrative officials are unjustified. First, as recently shown in Minnesota, the authority to determine child support awards does not lie in the administrative branch. (5)

The Supreme Court of Minnesota also discussed a similar Nebraska Supreme Court case. (6) In the Nebraska case, the state supreme court found the expedited child support system unconstitutional because the administrative system usurped the district court’s jurisdiction by removing certain child support cases from the district court’s jurisdiction.

It is as well, unreasonable to assume that improvement of the state’s rebuttal mechanism will lead to increased challenges to the guidelines. State law, in conformance with federal law (and obviously both state and federal constitutions) already provides every parent with the right of rebuttal. The only aspect of the decision process logically connected with the proposed improvements may be the rate at which rebuttal is successful.

It need be pointed out that the right of being successful in rebuttal when the presumptive award is unjust or inappropriate is synonymous with the right of rebuttal. It is in all respects an unavoidable conclusion that the state’s rebuttal mechanism must be as effective as possible at correcting presumptive awards.

For the sake of efficiency, it is apparent that information obtained from successful rebuttals may suggest improvements in the design of the presumptive child support guideline. Improvements in the design of the guideline itself, then reflecting more accurately a set of fair and reasonable principles, may result in a drop in the percentage of presumptive awards that are challenged.

It is therefore reasonable to propose new guidelines immediately, providing fundamental changes to the formula for determining the presumptive award, following adoption in statute of sufficient policy from which an appropriate guideline can be derived. The differences in amounts awarded using current guidelines presumptively and those that were awarded traditionally in relation to rational child support policy vary widely, depending in large part on income level but also on other mitigating factors not treated adequately by the current guidelines. Awards in some circumstances changed a great deal, while others changed little. Estimates of the overall difference also vary. Some have been as low as a 12-15% increase.

One of the most significant changes we expect to recommend for development of an appropriate guideline formula is the use of "relative ability to pay," replacing joint income as a primary parameter in the calculation. "Ability to pay" is determined by deducting self-support needs from net income. (7) Self-support is already listed in the state's rebuttal criteria. Note that appropriate use of self-support will create a substantial difference in the proportion of financial support expected from each parent when the difference in income is substantial, especially for low-income custodial parents.

Current guidelines use income in the distribution of the child support obligation. This means that if a custodial parent has only enough income to support one adult, and the non-custodial parent twice that amount, the obligation is distributed one-third to the custodial parent and two-thirds to the non-custodial parent. Deducting self-support and using "ability to pay" in the same calculation results in a null share for the custodial parent’s obligation and a 100% share for the non-custodial parent.

To illustrate a second important point, take an example in which the parents’ joint income is $40,000 per year. It makes a great deal of difference how this income is distributed. The needs of children in a custodial parent household with an income of $8,000 per year are not the same as in a household with an income of $20,000. After considering a variety of calculations, it is apparent that numeric tables must relate to the specific financial circumstances in the children’s primary residence.

We expect to recommend a table of numeric values related to expected spending on children in the separated family setting. Higher award levels are expected in comparison with the traditional cost-sharing method. By using "ability to pay" rather than income, we expect the circumstances for which this increase is experienced to shift to compensate where such increases are actually appropriate; in those cases in which the custodial parent is financially needy and the non-custodial parent can afford to pay more.
 

Federal program requirements (8)

The Family Support Act of 1988 established a requirement for periodic review and evaluation of all state child support guidelines. (9)

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. (11) 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."
 
 

Virginia Child Support Law
 

Virginia Code § 20-108.1

Determination of child or spousal support

A. In any proceeding on the issue of determining spousal support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision shall be rendered based upon the evidence relevant to each individual case.

B. In any proceeding on the issue of determining child support under this title or Title 16.1 or Title 63.1, the court shall consider all evidence presented relevant to

any issues joined in that proceeding. The court's decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set out in §20-108.2 is the correct amount of child support to be awarded. Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with the court provided the complainant exercised due diligence in the service of the respondent or, if earlier, the date an order of the Department of Social Services entered pursuant to Title 63.1 and directing payment of support was delivered to the sheriff or process server for service on the obligor.

In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:

1. Actual monetary support for other children, other family members or former family members;

2. Arrangements regarding custody of the children;

3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation;

4. Debts of either party arising during the marriage for the benefit of the child;

5. Debts incurred for production of income;

6. Direct payments ordered by the court for health care coverage, maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child and costs related to the provision of health care coverage pursuant to subdivision 7 of § 20-60.3;

7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

8. Age, physical and mental condition of the child or children, including extraordinary medical or dental expenses, and child-care expenses;

9. Independent financial resources, if any, of the child or children;

10. Standard of living for the family established during the marriage;

11. Earning capacity, obligations and needs, and financial resources of each parent;

12. Education and training of the parties and the ability and opportunity of the parties to secure such education and training;

13. Contributions, monetary and nonmonetary, of each party to the well-being of the family;

14. Provisions made with regard to the marital property under § 20-107.3;

15. Tax consequences to the parties regarding claims for dependent children and child care expenses;

16. A written agreement between the parties which includes the amount of child support;

17. A pendente lite decree, which includes the amount of child support, agreed to by both parties or by counsel for the parties; and

18. Such other factors, including tax consequences to each party, as are necessary to consider the equities for the parents and children.

C. In any proceeding under this title or Title 16.1 or Title 63.1 on the issue of determining child support, the court shall have the authority to order a party to provide health care coverage, as defined in §63.1-250, for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse.

D. In any proceeding under this title, Title 16.1 or Title 63.1 on the issue of determining child support, the court shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.

E. Except when the parties have otherwise agreed, in any proceeding under this title, Title 16.1 or Title 63.1 on the issue of determining child support, the court shall have the authority to and may, in its discretion, order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption for any tax year or future years, for any child or children of the parties for federal and state income tax purposes.
 
 

Code of Federal Regulations

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]
 
 

Recommended revisions to Virginia Code
 

Recommended revised Virginia Code § 20-108.1

Determination of child or spousal support

A. In any proceeding on the issue of determining spousal support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision shall be rendered based upon the evidence relevant to each individual case.

B. In any proceeding on the issue of determining child support under this title or Title 16.1 or Title 63.1, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set out in §20-108.2 is the correct amount of child support to be awarded. Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with the court provided the complainant exercised due diligence in the service of the respondent or, if earlier, the date an order of the Department of Social Services entered pursuant to Title 63.1 and directing payment of support was delivered to the sheriff or process server for service on the obligor.

In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case.

In determining what is just and appropriate, the court shall apply the following;

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 finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:

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. 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. In making its determination, the court shall consider, but not limit itself to, the following factors:

1. Actual monetary support for other children, other family members or former family members;

2. Arrangements regarding custody of the children, including visitation arrangements;

3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation;

3. 4. Debts of either party arising during the marriage for the benefit of the child;

4. 5. Debts incurred for production of income;

5. 6. Direct payments ordered by the court for health care coverage, maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child and costs related to the provision of health care coverage pursuant to subdivision 7 of § 20-60.3;

6. 7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

7. 8. Age, physical and mental condition of the child or children, including extraordinary medical or dental expenses, and child-care expenses;

8. 9. Independent financial resources, if any, of the child or children;

10. Standard of living for the family established during the marriage;

9. 11. Earning capacity, obligations and needs, and financial resources of each parent;

10. 12. Education and training of the parties and the ability and opportunity of the parties to secure such education and training;

11. 13. Contributions, monetary and nonmonetary, of each party to the well-being of the family;

12. 14. Provisions made with regard to the marital property under § 20-107.3;

13. 15. Tax consequences to the parties regarding claims for dependent children and child care expenses;

14. 16. A written agreement between the parties which includes the amount of child support;

15. 17. A pendente lite decree, which includes the amount of child support, agreed to by both parties or by counsel for the parties; and

16. 18. Such other factors, including tax consequences to each party, as are necessary to consider the equities for the parents and children.

17. Expenses arising from other factors as the court may determine relevant in a particular case

C. In any proceeding under this title or Title 16.1 or Title 63.1 on the issue of determining child support, the court shall have the authority to order a party to provide health care coverage, as defined in §63.1-250, for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse.

D. In any proceeding under this title, Title 16.1 or Title 63.1 on the issue of determining child support, the court shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.

E. Except when the parties have otherwise agreed, in any proceeding under this title, Title 16.1 or Title 63.1 on the issue of determining child support, the court shall have the authority to and may, in its discretion, order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption for any tax year or future years, for any child or children of the parties for federal and state income tax purposes.
 

Citations

1.  Recommendations for Modification of Child Support Guidelines and Reform of their Use Corresponding to the Views of the Pennsylvania Supreme Court, Roger F. Gay, and Jay Todd, June, 1998

2.  Smith v Smith, 290 Or 675, 626 P2d 342, 344 (1981)  http://adrr.com/law1/csp11.htm

3.  New Equations for Calculating Child Support and Spousal Maintenance With Discussion on Child Support Guidelines, Roger F. Gay, July, 1994 (author copy).

4.  Holmberg v. Holmberg, Carlson v. Carlson, and Kalis-Fuller v. Fuller, Ct. Nos. C7-97-926, C8-97-1132, C9-98-33, C7-97-1512, Slip Op. (Minn. S. Ct. Jan. 28, 1999).; see also commentary by the National Conference of State Legislatures at http://www.ncsl.org/programs/cyf/mncbrief.htm

5. Drennen v. Drennen, 426 N.W.2d 252 (Neb. 1988).

6.  See for example Hockema v. Hockema, 18 Or. App. 273, 524 P.2d 1238 (1974); Related commentary; Judith Cassetty and Frank Douthitt, Support and Visitation Schedules, Guidelines and Formulas, in Williams (ibid. 3, page III-77); Judge Melson’s guidelines were in effect in Delaware in 1985, see Thompson, R.D., The Delaware Child Support Formula, Report to the 132nd General Assembly, April 15, 1984; Roger Gay, Pilot Study on the Development and Evaluation of State Guidelines for Calculation of Child Support Payments (1990, available from author) and An Alternative Child Support Guideline for States to Consider presented at the 7th Annual Conference of the Children’s Rights Council, Holiday Inn, Bethesda, MD, April 28 - May 2, 1993.

7.  New Equations for Calculating Child Support and Spousal Maintenance With Discussion on Child Support Guidelines, Roger F. Gay, July, 1994 (author copy).

8.  P.L. 100-485, Oct. 13, 1988, Sec. 103,b

9.  ibid., Sec. 103,a

10.  In Fitzgerald v. Fitzgerald, 566 A 2d 719 (D.C. App. 1989),