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  Contents
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  § 103
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CHAPTER 1:
CHILD SUPPORT GUIDELINE MODELS

§ 1.01 Introduction: Child Support Prior to the Guidelines: Defining the Problem
§ 1.02 The Federal Mandate
     [a] Federal Legislation: Pre-1984
     [b] Federal Legislation: 1984 and After
          [1] Child Support Enforcement Amendments of 1984
          [2] Family Support Act of 1988
          [3] Post-1988 Amendments
     [c] Federal Regulations Implementing the Support Act
          [1] Minimum General Requirements
          [2] Rebuttable Presumption that Award is Correct
          [3] Findings Necessary to Rebut the Presumption
     [d] Principles Underlying Guideline Formation
     [e] Goals of the Federal Mandate
§ 1.03 The State Response to the Federal Mandate
     [a] Overview of the Models
     [b] The Income Shares Model
          [1] Calculation of Support
          [2] Strengths and Weaknesses
     [c] The Percentage of Income Model
          [1] Calculation of Support
          [2] Strengths and Weaknesses
     [d] The Melson Formula Model
          [1] Calculation of Support
          [2] Strengths and Weaknesses
     [e] A Comparison of the Models
§ 1.04 Constitutional Challenge to the Guidelines
     [a] Federal Mandate as Unconstitutional
     [b] Method of Enactment by State as Unconstitutional (Violation of Separation of Powers)
          [1] Enactment by Court Order
          [2] Enactment by Legislation
          [3] Enactment by Administrative Regulation
     [c] Application of Guidelines by State as Violation of Due Process
     [d] Application of Guidelines by State as Violation of Equal Protection
     [e] Other Constitutional Challenges to State Guidelines
§ 1.05 Types of Proceedings to Which the Guidelines Apply

§ 1.01 Introduction: Child Support Prior to the Guidelines: Defining the Problem

Historically, the amount of child support awarded was completely within the discretion of the judge, based on two primary factors: the ability of the obligor parent to pay and the needs of the child. In considering the ability of the obligor parent to pay, the court weighed the obligor parent's financial resources and personal needs. In considering the needs of the child, the court weighed the custodial parent's financial resources, the child's standard of living had the marriage not dissolved, the child's physical and emotional condition, and the child's educational needs.1

Because the standard for the award of child support was amorphous, child support awards were subject to five major problems. First, many eligible parents had no child support awards at all, although they were entitled to such awards.2 In 1984, it was estimated that 30% of the 8.8 million custodial parents had no child support award.3 In 1989, 42.3% of the ten million mothers with children under age 21 whose fathers were living apart from the family did not have a child support award.4

Second, among parents who were awarded child support, the empirical evidence suggested award inadequacy. One study found that most noncustodial parents paid more in monthly car payments than they did in child support payments.5 Another study found that in 1985, the average support award was only $208 per month,6 which is only 23% of the average expenditures for two children in a middle income household.7

Third, studies showed the awards were inconsistent. One empirical study found that in one particular district court, support awards for one child ranged from 6% to 41% of the obligor's income; for two children, awards ranged from 5.6% to 40%.8 Another study reached similar conclusions.9 Thus, leaving the determination of child support to the complete discretion of judges based on "the needs of the child" led to inconsistent orders: two noncustodial parents with the same number of children, the same income, and the same circumstances, might very well obtain vastly different support orders.

Fourth, as a direct result of the inconsistency of the orders, obligors developed a disrespect for the court's orders, causing parents to simply forego their support obligations.10 In 1985, it was estimated that less than half of the women owed child support received the full amount due, and a full 26% received no support at all.11 In 1989, of the half-million women due child support, only 51% received the full amount, 24% received partial payment, and 25% received nothing.12 For 1991, before all the states had their guidelines in place, the result was not much better.13

Fifth, because of the amorphous standard, neither parent had any means to predict what a court would order. Because neither parent could predict what a court would order, neither parent was willing to settle. With little incentive to settle for a party who could afford an attorney, negotiations would go on interminably. With parties unwilling to settle, courts reported tremendous pressures coping with an estimated one million divorces occurring annually, plus paternity cases and actions to modify existing orders.14

These problems with child support awards were of direct concern to the federal government, because the federal government provided the "safety net" for those families whose support was inadequate or not forthcoming through the Aid to Families with Dependent Children program. Clearly, if these problems could be alleviated, the cost to the federal government would decrease. Thus, the federal government sought to curtail the traditional expansive nature of judicial discretion in determining child support awards.15

§ 1.02 The Federal Mandate
     [a] Federal Legislation: Pre-1984

In 1935, Congress enacted legislation establishing the Aid for Dependent Child program (AFDC).16 AFDC established a partnership between the federal government and the states by providing appropriations to those states which adopt plans approved by the Secretary of Health and Human Services. The states in turn provide a minimum monthly subsistence payment to families meeting established need requirements.

In 1974, Congress passed the Family Support Act (FSA), Title IV-D of the Social Security Act, requiring states receiving AFDC funds to establish and enforce child support obligations. Every state receiving AFDC funds had to establish a child support enforcement agency popularly known as a "IV-D Agency" that was required to meet standards promulgated by the newly established Office of Child Support Enforcement (OCSE), a division of the Department of Health and Human Services. The primary goal of the FSA was to reduce the federal cost of the AFDC program by sharpening enforcement of support obligations.17

     [b] Federal Legislation: 1984 and After
          [1] Child Support Enforcement Amendments of 1984

In 1984, Congress enacted the Child Support Enforcement Amendments of 1984 (CSEA).18 By this act, Congress required the states to put teeth into their laws and strengthen their enforcement powers, even as to non-Title IV-D families. This act effectively broadened the scope of the FSA by requiring the states to: (1) require employers to withhold child support from paychecks of delinquent parents for one month; (2) provide for the imposition of liens against the property of defaulting support obligors; (3) deduct from federal and state income tax refunds unpaid support obligations. States receiving AFDC funds also had to offer full parent-locator and child support services to all custodial parents, regardless of whether they were receiving AFDC payments. Thus, more than one-half of the total support collections were going to children who were not on the welfare rolls.19

The 1984 legislation also required the Office of Child Support Enforcement to establish a national advisory panel on child support guidelines. At the same time, the 1984 legislation required the states to establish numeric guidelines to determine appropriate amounts of child support and that these guidelines be made available to judicial and administrative officials charged with setting child support.20 These numeric guidelines were to be advisory only, however. The 1984 amendments thus injected federal initiative and authority more deeply than ever before into matters that previously had been viewed as reserved to the states.

          [2] Family Support Act of 1988

In 1987, the advisory panel of the Office of Child Support Enforcement prepared its recommendations for the development of child support guidelines to be used nationally.21 As a result of this study, Congress enacted the Family Support Act of 1988.22 Most importantly, the 1988 act mandated that by 1994, states implement presumptive, rather than advisory, 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.23

Federal law also requires that each state: (1) establish criteria under which application of the guidelines might be unjust or inappropriate, and require that when the decision-maker deviates from the guidelines, the decision-maker must make written findings as to why the guideline amount is unjust or inappropriate; (2) require that the guidelines be used not only to establish initial support awards, but for any subsequent modification of the award as well.24

          [3] Post-1988 Amendments

The most significant federal legislation in the area of the child support came in 1996, when Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). This act ended the federal entitlement of AFDC payments to the neediest families, and replaced it with block grants to the states, known as TANF (Temporary Assistance to Needy Families) grants.24.1 The PRWORA also made sweeping changes in the area of child support enforcement by expanding paternity establishment procedures, establishing new federal and state registries for support orders and new hires, enhancing interstate enforcement by requiring all states to adopt the Uniform Interstate Family Support Act (UIFSA), expanding the use of the Federal Parent Locator Service (FPLS), and requiring state to enact tougher enforcement measures such as authorizing the placement of liens on occupational and professional licenses. These amendments were challenged by the state of Kansas as "coercive" and intrusive on traditional state prerogatives, but this argument was not successful.24.2

The main thrust of the PWRORA was in child support enforcment, as opposed to the determination of the amount of child support. While the PWRORA repealed the federal guarantee of AFDC benefits, it did not repeal the requirements concerning states' adoption of child support guidelines. In fact, the PWRORA added the provisions to the federal mandate concerning adoption of guidelines that can adopt procedures for triennial review of all guideline awards based only on a cost of living increase.24.3 Some commentators believe that given the continually expansive role of the federal government into heretofore matters of family law that were the exclusive province of the states, it is surely only a matter of time until the federal government adopts a national child support guideline model.24.4

     [c] Federal Regulations Implementing the Family Support Act
          [1] Minimum General Requirements

Pursuant to federal regulations, state guidelines must at a minimum satisfy certain requirements.25 State guidelines must:

(1) Take into consideration all earnings and income of the absent parent;
(2) Be based on specific descriptive and numeric criteria and result in the computation of the support obligation;
(3) Provide for the child(ren)'s health care needs, through health insurance coverage of other means.

          [2] Rebuttable Presumption that Award is Correct

Consistent with the requirements of the Family Support Act of 1988, the federal regulations also require that the state guideline must provide that in any judicial or administrative proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the state's guideline is the correct amount of child support to be awarded.26

          [3] Findings Necessary to Rebut Presumption

Finally, the federal regulations require that a written finding or specific finding on the record in any proceeding for an award of child support that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption, as determined by the 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 must include a justification of why the order varies from the guidelines.27

     [d] Principles Underlying Guideline Formation

The Advisory Panel on Child Support Guidelines also recommended to the states that they follow certain principles in enacting their guidelines:28

(1) Both parents should share legal responsibility for support of their children, with the economic responsibility divided between the parents in proportion to their income;
(2) The subsistence needs of each parent should be taken into consideration in setting child support, but in virtually no event should the child support obligation be set at zero;
(3) Child support must cover a child's basic needs as a first priority, but, to the extent either parent enjoys a higher than subsistence level standard of living, the child is entitled to share in the benefit of that improved standard;
(4) Each child of a given parent has an equal right to share in that parent's income, subject to factors such as age of the child, income of the parent, income of a current spouse, and the presence of other dependents.
(5) Each child is entitled to determination of support without respect to the marital status of the parents at the time of the child's birth. Consequently, the guidelines should be used equally in cases of paternity, separation, and divorce.
(6) Application of the guidelines should be sexually nondiscriminatory.
(7) A guideline should not create extraneous negative effects on the major life decisions of either parent. In particular, the guideline should avoid creating economic disincentives for remarriage or labor force participation.
(8) A guideline should encourage the involvement of both parents in the child's upbringing. A guideline should take into consideration the financial support provided by parents in shared physical custody and extended visitation arrangements.

     [e] Goals of the Federal Mandate

By requiring the states to establish child support guidelines, the federal government hoped to accomplish four main goals, each goal corresponding to the perceived problems of the common law method of determining child support:29 (1) increase the adequacy of child support awards; (2) increase the consistency and predictability of child support awards; (3) increase compliance through perceived fairness of child support awards; and (4) increase the ease of administration of child support cases.30

Next


1 See 2 Homer C. Clark, The Law of Domestic Relations in the United States § 18.1 at 359-60 (2d ed. 1987); see also Uniform Marriage and Divorce Act § 309, 9A U.L.A. 400 (1987). (back)

2 See generally Harry D. Krause, Child Support In America (1981); James B. McLindon, Separate But Unequal: The Economic Disaster of Divorce for Women and Children, 21 Fam. L. Q. 351 (1987); Heather Wishik, Economics of Divorce, 20 Fam. L. Q. 79, 96-98 (1986).

Sociologist Lenore Weitzman, in her 1985 book The Divorce Revolution, concluded that a woman's standard of living in the first year after a no-fault divorce dropped 73%, while a man's rose 42%. Id. At 337-39. Sociologists challenged these figures, and research has consistently found that divorced women's standard of living fell about 30% while those of men's rose 10%, regardless of whether the divorce occurred under no-fault or fault conditions. Moreover, Weitzman has been unable to replicate her figures with research, has stated there were "serious errors and problems" with her research, and "it would be irresponsible" for researchers to draw on her work.

Unfortunately, Weitzman's figures have been consistently cited in scores of law review articles, including the ones cited herein, that do not dispute her figures. Moreover, Weitzman's figures have been used to blame women's poverty not on the real sources of poverty (unpaid child support and the wage gap), but on no-fault divorce. See Susan Faludi, "Statistically Challenged," The Nation, Vol. 262, No. 15 at 10 (April 15, 1996).

U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: Special Report (1987). The incidence of lack of support orders was highest among never-married mothers. Irwin Garfinkel, Child Support and Public Policy (1987). See generally Nancy Thoennes, Patricia Tjaden and Jessica Pearson, The Impact of Child Support Guidelines on Award Adequacy, Award Variability, and Case Processing Efficiency, 25 Fam. L.Q. 325, 326 (1991). (back)

3 U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1989 (Current Population Reports, Series P-60, No. 173, 1990). (back)

4 Lucy Yee, What Really Happens in Child Support Cases: An Empirical Study of Establishment and Enforcement of Child Support Orders in the Denver District Court, 57 Den. L. J. 21, 36 (1979). (back)

5 U.S. Census Bureau, U.S. Dep't of Commerce, Money Income and Poverty Status of Families and Persons in the United States: 1985 (Current Population Reports, Series P-60, No. 154, 1986); U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1985 Supplemental Report (Current Population Reports, Series P-23, No. 154, 1989). (back)

6 Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report, at II-88 (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987), citing Thomas Espenshade, Investing in Children: New Estimates of Parental Expenditures (1984). (back)

7 Lucy Yee, What Really Happens in Child Support Cases: An Empirical Study of Establishment and Enforcement of Child Support Orders in the Denver District Court, 57 Den. L. J. 21, 36 (1979). (back)

8 K. White & R. Stone, A Study of Alimony and Child Support Awards: An Analysis of Judicial Discretion in Divorce Cases in Kansas, 10 Fam. L. Q. 75 (1976). See generally Nancy Thoennes, Patricia Tjaden & Jessica Pearson, The Impact of Child Support Guidelines on Award Adequacy, Award Variability, and Case Processing Efficiency, 25 Fam. L. Q. 325, 327 (1991). (back)

9 Nancy Erickson, Child Support Manual for Attorneys and Advocates, at 179 (Nat'l Center on Women and Family Law, 1992); Nancy Thoennes, Patricia Tjaden, & Jessica Pearson, The Impact of Child Support Guidelines on Award Adequacy, Award Variability, and Case Processing Efficiency, 25 Fam. L. Q. 325, 327 (1991), citing Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987). (back)

10 U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1985 (Current Population Reports, Series P-23, No. 154, 1989). See also U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1983 (Current Population Reports, Series P-23, No. 141, 1984), where the Census Bureau reported that in 1983, of the 8.7 million mothers who were living with a child under age 21 without a father in the home, 58% had been awarded child support, and the remainder had not. Of those who did receive support, only 50% received the full amount due. (back)

11 U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1989 (Current Population Reports, Series P-60, No. 173, 1990). (back)

12 The U.S. Dep't of Commerce and the U.S. Dep't of Health and Human Services released a joint report in 1995 based on data collected in 1991 as part of the April 1992 supplement to Current Population Survey. The report shows that in 1991, of the 54% of custodial parents who had support obligations in place, only 67% of outstanding child support obligations were met. (back)

13 Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987). (back)

14 E.g., Westgate v. Westgate, 887 P.2d 737 (Nev. 1994) (the new child support guidelines intentionally depart from the traditional practice in which courts exercised broad discretion and determining awards). (back)

15 42 U.S.C.A. §§ 601 et seq. (back)

16 Social Security Amendments of 1974, Pub. L. 93-647, 88 Stat. 2337, at 42 U.S.C. §§ 651-665. (back)

17 As state in Marion Dobbs, et al., Enforcing Child and Spousal Support § 4.04 (1995), AFDC payments are in a direct sense child support paid by the taxpayer; eligibility for AFDC requires a dependent child and an absent parent. (back)

18 Pub. L. 98-378, 98 Stat. 1305, amending 42 U.S.C. §§ 657-662. (back)

19 Harry D. Krause, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, 24 Fam. L. Q. 1, 7 (1990). For further discussion of the 1984 law, see Diane Dodson & Nancy Hurowitz, Child Support Enforcement Amendments of 1984: New Tools for Enforcement, 10 Fam. L. Rep. (BNA) 3051 (1984). (back)

20 45 C.F.R. § 302.56(c) requires that the guidelines be based on specific descriptive and numeric criteria that results in a mathematical computation of the support award. (back)

21 Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987). (back)

22 Pub. L. 100-485, 102 Stat. 2343, codified primarily at 42 U.S.C. §§ 654, 666-667. (back)

23 42 U.S.C. § 667(b)(2). (back)

24 42 U.S.C. § 667. (back)

24.1 The PRWORA is also known as the Welfare Reform Act, because, in the words of the President, it "ended welfare as we know it" by eliminating AFDC. (back)

24.2 Kansas v. United States, 25 Fam. L. Rep. (BNA) 1089 (D. Kan. 10/9/98). See Paul K. Legler, The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act, 30 Fam. L.Q. 519 (Fall 1996). (back)

24.3 42 U.S.C. § 666(a)(10). (back)

24.4 See Laura Wish Morgan, The Increasing Federalization of Child Support: Whither the National Child Support Guideline?, 15 J. Amer. Acad. Matrimonial Law. ___ (Summer 1998). (back)

25 45 C.F.R § 302.56. (back)

26 45 C.F.R. § 302.56(f). (back)

27 45 C.F.R. § 302.56(g). (back)

28 Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987). (back)

29 See H. Rep. No. 527, 98th Cong., 1st Sess. 49 (1983) for listing of concerns that led Congress to require the establishment of child support guidelines; see § 1.01 for a discussion of the problems under the existing common law. (back)

30 Dr. Robert Williams, Chairman of the Advisory Panel, characterized the federal government's objectives as follows: (1) To enhance the adequacy of orders for child support by making them more consistent with economic evidence on the costs of child rearing; (2) To improve the equity of orders by assuring more comparable treatment for cases with similar circumstances; and (3) To improve the efficiency of adjudicating child support orders by encouraging voluntary settlements and reducing the hearing time required to resolve contested cases.

Although Dr. Williams omitted increased compliance in this statement of goals, this must be seen as understood; the entire purpose of the guidelines is to reduce the cost of child support collection and enforcement to the federal government. Indeed, the Congressional findings indicate that the goals of state guidelines were increased compliance with orders, increased efficiency in case processing, and increased adequacy of awards. Pub.L. No. 98-378, § 23; 1984 U.S. Code Cong. & Admin. News 2397. Moreover, without a direct nexus to federal governmental concerns, it is doubtful that Congress has the power to enact legislation requiring states to enact guidelines under U.S. v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). The Child Support Recovery Act, 18 U.S.C. § 228, has withstood constitutional attack on the basis that Congress may regulate the nonpayment of child support across state lines because (1) the nonpayment of child support involves payment of a debt and therefore constitutes economic activity or commerce, and (2) the nonpayment of child support in the aggregate has a substantial impact on commerce. (back)

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