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The Constitutionality of Child Support Guidelines

In Alienation of Affection, Best Interest of the Child, Child Custody, Child Support, child trafficking, children legal status, children's behaviour, Civil Rights, CPS, cps fraud, Domestic Relations, Domestic Violence, due process rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, federal crimes, Freedom, judicial corruption, Liberty, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Rights Amendment, Parentectomy, Parents rights, Rooker-Feldman Doctrine, state crimes, Title Iv-D on May 31, 2009 at 9:00 pm

© 2003 National Legal Research Group, Inc.

This article updates a previous article dealing with the same subject. Laura W. Morgan, The Constitutionality of Child Support Guidelines, 14 Divorce Litigation 117 (2002).

I. New Decisions

On April 29, 2003, the Supreme Court of Georgia decided Georgia Department of Human Resources v. Sweat, 2003 WL 1960012 (Ga. 2003). This case reviewed a trial court’s decision declaring the Georgia child support guidelines unconstitutional as a violation of the guarantees of due process, equal protection, and privacy, and as an unconstitutional taking of property. The Georgia Supreme Court concluded that the trial court employed “incorrect constitutional standards” and “unsound constitutional analyses,” and reversed.

The Georgia Supreme Court first concluded that the guidelines do not violate the Georgia and United States Constitutions’ guarantees of due process for two reasons. First, the statute need only meet the rational basis test, i.e., it is reasonably related to the public health, safety, or general welfare, and not a more exacting constitutional standard, because the statute does not infringe on a fundamental right and the complaining party is not a member of a suspect class. The trial court thus erred by applying an intermediate scrutiny analysis. Second, the statute meets the rational basis test as it furthers the important and reasonable objective of ensuring adequate support for Georgia’s children whose parents have divorced. The distinction between custodial and non-custodial parents is required to ensure that each parent contributes his or her fair share.

The court next concluded that the guidelines do not violate the Georgia and United States Constitutions’ guarantee of equal protection. Again, because no fundamental right or suspect class is involved, the statute need only meet the rational basis test. Custodial and non-custodial parents are not, by definition, similarly situated, and it is not true that only non-custodial parents are affected by support orders. The guidelines thus draw permissible distinctions without discriminating.

The court further concluded that the guidelines do not violate the constitutional right of privacy. The state has a sufficient interest in ensuring adequate support for its children, and child support has never been a private function.

Finally, the guidelines do not effect an illegal taking. The guidelines are not a governmental taking of money for a public purpose, but are an effort to ensure payment of support from one parent to another.

On May 2, 2003, the Tennessee Supreme Court decided Gallaher v. Elam, 2003 WL 2010731 (Tenn. 2003). This decision reviewed a Tennessee Court of Appeals’ decision that held that Tennessee Child Support Guidelines ch. 1240-2-4-.03(4) violated the Equal Protection and Due Process Clauses of the Tennessee and United States Constitutions. This provision of the guidelines states: “Children of the obligor who are not included in a decree of child support shall not be considered for the purposes of reducing the obligor’s net income or in calculating the guideline amount. In addition, these children should not be considered by the court as a reason for deviation unless they meet the requirements of rule 1240-2-4-.04(4).” The court of appeals also held that Tennessee’s guidelines, by taking into consideration only the obligor’s income, also violated equal protection and due process.

The Tennessee Supreme Court began its analysis with the appropriate level of constitutional scrutiny and concluded that the guidelines need only meet the rational basis test. The lower court thus erred by applying heightened scrutiny.

Next, the court stated that the guidelines treat obligors who have children for whom there are no orders of support differently from obligors who have children subject to court-ordered support. This distinction meets the rational basis test because children who are subject to court orders and those who are not enjoy different benefits from the obligor.

The court then held that the state’s formula for computing child support, which is based solely on a percentage of the obligor’s income, does not result in any constitutional violation per se. This is because the guidelines presume (and it is true) that the obligee will be expending at least an equal percentage of net income as that of the obligor for the support of the children for whom support is sought. Moreover, the guidelines permit a deviation from the amount calculated if the presumptions underlying the guidelines are not present in the particular case. Thus, a parent can present evidence to the court regarding his or her case that will result in the fairest possible award.

Finally, the court concluded that there was no violation of separation of powers for the Department of Human Services to enact child support guidelines. The Department was clearly carrying out the legislature’s intent embodied in Tenn. Code Ann. 71-1-132(a)(1), which directed the Department to enact guidelines consistent with the federal mandate at 45 C.F.R. 302.56. The delegation of power was thus constitutional.

II. Analysis

The law is clear that child support guidelines need only meet the rational basis test in order to pass constitutional scrutiny. In case after case, the courts have held that child support guidelines must meet this test. Yet, non-custodial parents continue to press in state after state the same arguments: that child support guidelines violate due process, equal protection, the right of privacy, the separation of powers, First Amendment rights, etc. Why?

There is a persistent view that child support guidelines treat non-custodial parents unfairly, that the amount they pay is simply too much. This view persists even though study after study has shown that (a) non-custodial parents’ standard of living goes up after divorce, while custodial parents’ standard of living goes down; and (b) child support does not reach even the basic levels of expenditures on children in intact families as determined by the United States Department of Agriculture.

One reason for this persistent view may be the percentage of income model itself. Both of these recent challenges came from states, Georgia and Tennessee, that use the percentage of income model. Although this model presumes that the custodial parent is contributing to the support of the child(ren) in the same percentage as the non-custodial parent, this presumption is not as explicit in the method of calculating support as it is in income shares model states. Where the perception of fairness is as important as fairness itself, it may be a good idea for percentage of income model states to switch to the income shares model.

Another reason may be non-custodial parents’ frustration with an inability to obtain custody/visitation in an amount they desire. When a parent does not see a child as much as he or she wishes, that parent is less likely to pay support or view support as fair.

There should be no battle on this topic. All parents should agree that children are entitled to a “fair” amount of support, and all parents should agree that both parents, in the absence of domestic violence or other vitiating factors, should have as much access to the child as is in the best interests of the child. Fairness can be ensured by a child support guideline model that takes into consideration as many factors as possible, including both parents’ incomes, and access to the child should be a priority with the courts. If both these goals are realized, the constitutional challenges will diminish.

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  1. P.S. Why won’t the site let me LIKE this blog using my facebook account?

    When I try to log in using my facebook account it refuses to let me LIKE this blog but allows me to post a comment.

    I’m sorry I posted the same comment to birminghamattorney twice. Please delete one of them if you decide to post the other.

  2. @birminghamattorney–Most men over the age of 16 will not be impressed by the SUPPOSED fairness nor will they feel sympathy for the court’s docket being jammed–since over 70% of women are filing for the divorces. In a recent survey, women said the #1 reason they filed for divorce is because they knew they would get custody, not because of dom violence or sex abuse of kids.

    If the courts really want to clear their dockets & SHOW fairness let me make a suggestion:
    When a woman goes to court & says, I need 1500 per mo. so children & I can live like we are accustomed too. Judge says, ok but law changed yesterday. I have lottery drum w/3 white balls for women & 3 blue (usually are) balls for men. He turns tumbler & blue ball falls out. Sorry, your husb gets the kids & you have to pay 1500 per mo. She replies, I only make 2500 per mo. He says, get use to it, men have for 50 yrs.

    I just unjammed the court docket and cut divorce rate in half over night. Best interests of kids, right??

    The reason legislators don’t make things easier for men is because the “best interest of children” actually means the “best interest of the state.”

    Most judges realize that if anything resembling fairness was applied in child custody, every divorce lawyer would tell his female client to use the “magic bullet” for custody–allege dom violence or sex abuse against the dad–it’s a no fail way to get child custody & support. You can ruin your ex financially, let the state commit parental alienation on your behalf & if found out to be lying, you won’t be prosecuted. WHAT A DEAL!

    Recently, a case in NJ (NJ has a statute that says if a person gets child custody by lying & gets caught the custody goes to the other parent automatically) a woman was caught lying a year after she rec’d custody & the court immed gave custody to the father. All hell broke loose, the media & the fems made a big stink & demanded that law be repealed.

    Yeah, it’s clear,” best interest of the children” just as long as moms get custody 95% of the time. If men got custody 50% of the time women would be rioting & burning cars in the streets.

  3. @birminghamattorney–Most men over the age of 16 will not be impressed by the SUPPOSED fairness nor will they feel sympathy for the court’s docket being jammed–since over 70% of women are filing for the divorces. In a recent survey, women said the #1 reason they filed for divorce is because they knew they would get custody, not because of dom violence or sex abuse of kids.

    If the courts really want to clear their dockets & SHOW fairness let me make a suggestion:
    When a woman goes to court & says, I need 1500 per mo. so children & I can live like we are accustomed too. Judge says, ok but law changed yesterday. I have lottery drum w/3 white balls for women & 3 blue (usually are) balls for men. He turns tumbler & blue ball falls out. Sorry, your husb gets the kids & you have to pay 1500 per mo. She replies, I only make 2500 per mo. He says, get use to it, men have for 50 yrs.

    I just unjammed the court docket and cut divorce rate in half over night. Best interests of kids, right??

    The reason legislators don’t make things easier for men is because the “best interest of children” actually means the “best interest of the state.”

    Most judges realize that if anything resembling fairness was applied in child custody, every divorce lawyer would tell his female client to use the “magic bullet” for custody–allege dom violence or sex abuse against the dad–it’s a no fail way to get child custody & support. You can ruin your ex financially, let the state commit parental alienation on your behalf & if found out to be lying, you won’t be prosecuted. WHAT A DEAL!

    Recently, a case in NJ (NJ has a statute that says if a person gets child custody by lying & gets caught the custody goes to the other parent automatically) a woman was caught lying a year after she rec’d custody & the court immed gave custody to the father. All hell broke loose, the media & the fems made a big stink & demanded that law be repealed.

    Yeah, it’s clear,” best interest of the children” just as long as moms get custody 95% of the time. If men got custody 50% of the time women would be rioting & burning cars in the streets.

  4. In Alabama, child support is figured using Guidelines set out in legislation. These guidelines can be deviated from for good cause shown and if approved by a Judge, but for the most part, they stick to the formula; it’s pretty cut and dry. This is done not only in the spirit of fairness and equity to keep everyone’s support balanced, but also because of the sheer volume of Domestic cases coming through the Court system. If a Judge had to figure out every situation differently, nothing would ever get done, so they make a set formula to ensure speedy calculation. This is done in numerous other jurisdictions as well. If one is curious about child support in Alabama, there are some up to date Alabama Child Support Calculator(s) out there that will give a pretty close approximation of what your support Order will look like.

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