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.
 
 
 
 

Most importantly though, we have the underpinning of our Constitution as the fundamental guidepost that has worked so well for hundreds of millions of Americans from all walks of life for more than 200 years. For them, but especially for those for whom the Constitution has not always worked so well, and for future generations, I challenge you to continue your study of the present, learn from and build on our past, and marshal our best abilities to chart an even more just future.

Pennsylvania Supreme Court Justice Stephen A. Zappala in an address to the Pennsylvania Futures Commission on Justice, March 28,1996.
 
  Summary

The "Income Shares" formula currently used in West Virginia is logically inadequate, based on invalid statistical argument, and inappropriate for the purpose of calculating child support awards. It does not correspond with the purpose of child support stated in West Virginia Code. The Income Shares model should be abandoned in favor of a formula that more closely corresponds to a set of rational principles provided by statute. The Code should also be modified to strengthen the expression of the rational basis for child support award decisions.
 

Key recommendations are;

1. The rational basis for awarding a particular amount of child support in each case should be more thoroughly defined.
2. The primary purpose of the use of a child support guideline is to assure a just and appropriate child support award in each case.
3. A systematic review process needs to be implemented to ensure that the child support formula conforms to the rational basis.
4. The Income Shares model should be abandoned in favor of a model that corresponds to the rational basis provided by the legislature.

Table of Contents

cover page *
Summary *
Table of Contents *
Systematic and comprehensive approach to review *
West Virginia Child Support Law *
West Virginia Child Support Guidelines *
Disregard of formula *
Recommendations *
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.
 
 

· 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. 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 the statutes do not explicitly contain these three principles, they are assumed for the purpose of review of the guideline. 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.

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
 
 
 
 
 
 

West Virginia Child Support Law

West Virginia Code §48-2-15 provides authority to the Virginia State Courts to order child support and alimony, among other provisions.

The code defines specific and independent purposes for the award of child support and alimony.

Summary:

· Alimony may be awarded for the maintenance of the other party. (§48-2-15 (a))

· Child support may be awarded for the maintenance of the minor children. (§48-2-15 (b-2))

· The court may award the right of visitation and set out a schedule. (§48-2-15 (b-1))

· Child support is awarded in amounts calculated by child support guidelines.
§48-2-15 (b-2)
§48-2-15 (b-10-e)

· Regarding payments to third parties, the court may specific whether payments are alimony, child support, a partial distribution of marital property or an allocation of marital debt. (§48-2-15 (b-5))

· In some circumstances, alimony may not be awarded. (§48-2-15 (b-10-i))
 
 
 
 

Comments:

Given years of experience, the distinction between child support and alimony is quite clear. However, the statute itself could provide greater assistance to courts and law masters in determining whether amounts calculated by the guidelines are just and appropriate. According to federal law, amounts calculated by the guidelines are presumptively correct but must be rebuttable. Both courts and litigants may have a difficult time defining what a just and appropriate child support award is. In the absence of greater legislative support, there is a danger that courts may rely too heavily on the presumptive correctness of the guideline; thus, inadvertently cheating parents of their right of due process.

Over 200 years of American history was sufficient to determine rules for the award of child support that are consistent with the Constitutional framework. In a section below, an example is given of a traditional child support statute, which has been modified to make use of presumptive child support guidelines.

There are advantages in the use of traditional wording of child support statutes, which are not often taken up in debate on child support law. One is that many years of judicial decision-making and precedence associated with traditional statutes significantly strengthen the overall understanding of the meaning of the language and basis for a child support award. Another is that the exercise of due process facilitated by a statutory rational basis for child support awards allows every litigant to participate in improvement of the law.

See also; Recommendations for Modification of Child Support Guidelines and Reform of their Use Corresponding to the Views of the Pennsylvania Supreme Court, and The Child Support Guideline Problem.
 
 

West Virginia Child Support Guidelines

West Virginia Code §48A-1B-1 establishes general provisions for child support guidelines.

Summary:

(a) Purpose of the guideline is to ensure greater uniformity by those persons who make child support recommendations and enter child support orders and to increase predictability for parents, children and other persons who are directly affected by child support orders.

There shall be a rebuttable presumption, in any proceeding before a family law master or circuit court judge for the award of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded.

(b) Legislature recognizes that children have a right to share in their natural parents' level of living. In order to ensure that children properly share in their parents' resources, regardless of family structure, the guidelines are structured so as to provide that after a consideration of respective parental incomes, that child support will be related, to the extent practicable, to the level of living that children would enjoy if they were living in a household with both parents present.

(c) Guidelines to take into consideration the financial contributions of both parents in relationship to total income, so as to establish and equitably apportion the child support obligation.

(d) Child support formula based on the Income Shares model as of June, 1997.

Comments:

West Virginia Code §48-2-15 (b) provides language that is not unfamiliar in traditional statutes.

The Income Shares model (d) is the most widely used form of child support guideline in the United States. As currently formulated in those states, the origin of the Income Shares model is a proposal by child support collection entrepreneur, Robert G. Williams, through his parent corporation Policy Studies Inc. (PSI). In 1987, his report was released by the Office of Child Support Enforcement.

As the most widely used child support formula, its characteristics are well known to child support researchers and analysts, as are its faults. With a stated goal of increasing "child support award" levels 250%, the PSI Income Shares model is obviously designed to the financial advantage of collection agencies that work on percentage. (See; Child Support Policy and Robert Williams, by James R. Johnston, Fathering Magazine, September 1999 http://www.fathermag.com/907/child-support/)

The arbitrary increases in awards that have resulted from its use are known to include a significant share of alimony in many cases. (See The Alimony Hidden in Child Support.) It is estimated that since adoption of the model (and the Wisconsin percent of income formula) the fraction of "child support awards" in the United States that is actually alimony has climbed above 50%. This finding has been confirmed by many researchers; including Gregory Palumbo, Hans Dutt, Mark Rogers, and David Garrod.

Use of the PSI Income Shares model does not therefore conform with the purposes described in §48-2-15 of the West Virginia Code, which defines child support as exclusively for the purpose of providing for maintenance of minor children. Alimony, according to West Virginia law, may be awarded separately when appropriate.

Use of the PSI Income Shares model does not conform to federal law which requires a just and appropriate child support award in each case.

Use of the PSI Income Shares model is inconsistent with the intent of tax law that requires income tax on child support payments to be made by the payer, and income tax on alimony payments to be paid by the recipient.

In 1989, when federal law first required presumptive use of child support guidelines in all child support cases, the science of child support decision making was insufficient for development of a formula that could ensure just and appropriate awards in the majority of cases. In particular, mathematics for adjusting child support awards to adjust "level of living" to reflect that of the parents ability had not been worked out.

The Income Shares model, introduced two years earlier, is immature in its logic and primarily based on unsupportable speculation, which in turn is based on an invalid statistical argument using fundamentally off-target family spending data. The Income Shares model produces results that are random in relation to children's needs. Political advocacy for the generally higher awards resulting from use of Williams' formula has been a matter of arbitrarily assigning a rational description to the outcome.

The Income Shares model cannot be fixed by simple adjustments, even to the numeric table. The invalid statistical underpinnings of the model combined with the inadequacy of logic in the formula itself, cannot lead to a guideline that will produce just and appropriate awards in a wide range of circumstances.
 
 

Disregard of formula

West Virginia Code §48A-1B-14 provides authority for disregarding or adjusting the formula when it is found to be inappropriate in a specific case. The general approach taken by the West Virginia legislature is extremely good, in this reviewer's opinion.

Specifically, the legislature has attempted to identify what the child support decision model accounts for and what is excluded from consideration in the basic calculation. By specifying what is not already considered, the Code identifies specific situations in which the presumptive amount needs to be adjusted.

The recommendations below are oriented toward strengthening the ability of the law master or court to distinguish when a presumptive award calculated by the formula is inappropriate.

The greatest difficulty in fully and adequately implementing the disregard strategy lies in the design of the Income Shares model. Based on invalid statistical analysis of fundamentally off-target family spending data, use of the formula is nonsensical.

It is recommended that the principles upon which child support award decisions are made be more thoroughly defined in the Code, and that the Income Shares model be replaced with mathematics that recognizably correspond to the rational basis.

An important advantage exists in opening up an understanding of the child support formula. Every litigant in a child support case may contribute to improvement of the child support guidelines through launching a meaningful appeal against an inappropriate result. This particular benefit, that citizens may participate in improvement of law, is inherent in the design of the three branch system of government (checks and balances) and the right of due process which every citizen of the United States has.

(A copy of the West Virginia Constitution may be found on the www, at: http://www.state.wv.us/const/default.htm)

These are primary differentiating characteristics between the United States and weaker, less stable democracies. It certainly differentiates the United States from extremist dictatorial regimes. It cannot be more important to apply these special attributes anywhere than it is in family policy. The family is the fundamental social unit upon which the whole society is built. Destroy individual rights with respect to family issues and you will destroy the society.
 
 

Recommendations

Presumptive use of the Income Shares model obviously violates rights of due process and equal protection. One can only explain its decade long survival in terms of federal tampering and financial incentives. In order to correct the problem, the following is recommended.

It is recommended that the State of West Virginia abandon use of the Income Shares model in favor of a more adequate and rational form of child support guideline. This can be accomplished by providing greater clarity in the purpose of awarding child support, and following a systematic review process for ensuring that child support guidelines conform to the purpose and principles set forth in the statute.

The most important recommendations are;

1. The rational basis for awarding a particular amount of child support in each case should be more thoroughly defined.
2. The primary purpose of the use of a child support guideline is to assure a just and appropriate child support award in each case.
3. A systematic review process needs to be implemented to ensure that the child support formula conforms to the rational basis.
4. The Income Shares model should be abandoned in favor of a model that corresponds to the rational basis provided by the legislature.

Purpose of child support

West Virginia Code already states the first principle used in this review.

1. Child support is for the maintenance of the minor children. (§48-2-15 (b-2))

In support of Equal Protection rights, West Virginia should explicitly include the second principle of the review process.

2. Both parents have an equal duty to support their children.

In support of Due Process rights, West Virginia should explicitly include the third principle of the review process.

3. All relevant circumstantial information may effect the amount of the award.
 
 

Purpose of the guidelines

Current West Virginia Code does not explicitly include the primary federally mandated purpose of child support guidelines, which is;

to assure a just and appropriate child support award in each case.

The problem with the general pursuit of uniformity and efficiency without the balance of a higher priority to do the right thing in each case is amply demonstrated in the failure of Communism around the world.
 
 

The Child Support Guideline

The Income Shares formula is logically inadequate, based on invalid statistical argument, and inappropriate for the purpose of calculating child support awards. It does not correspond to any set of rational principles. The Income Shares model should be abandoned in favor of a formula that more closely corresponds to a set of rational principles provided by statute.
 
 

For more information and discussion, see The Child Support Guideline Problem.

http://www.geocities.com/CapitolHill/5910/picslt.html
 
 

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.