| MND COMMENTARY |
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A Return to Welfare As We
Knew It? The beginning of the end of child support reform by Roger F. Gay A
Georgia court has declared the state's child support guidelines unconstitutional.
The judgment states three requirements for constitutionally acceptable child support decisions. Both parents have an equal obligation to support their children in accordance with their relative means to do so; regardless of their gender and custodial status. The amount awarded as "child support" must be limited to address only the need for financial support of dependent children. Child support awards must be rationally related to the relevant facts and circumstances of each case. Child support law existed in the thirteen colonies and has existed in the states since the beginning of the nation's history. Not surprisingly, the requirements presented in the Georgia judgment are reminiscent of traditional law that developed through more than two hundred years of case precedent. Federal reforms effectively blocked the application of established legal principles by extending the use of politically controlled formulae, known as child support guidelines, to non-welfare cases. State courts have been required to apply their state's formula in every child support case and presume that results are correct. Despite a federal requirement for states to review their guidelines to assure that their use results in a just and appropriate award in every case, no state has ever validated the logic of their guidelines. According to child support collection entrepreneur Robert Williams who is the primary designer of most state guidelines, the objective was to increase the average amount of an award by two and a half times. It is this practice in particular, arbitrarily increasing awards by using a presumptively correct formula that the Georgia court found unconstitutional. Since the federal reforms took effect, mathematical studies performed by the Project for the Improvement of Child Support Litigation Technology (PICSLT) have confirmed the necessity of the three principles in defining the logic for properly determining child support awards. The overpayment resulting from the use of guidelines has become known as hidden alimony. On the other side of the issue is a strange coalition of special interest groups that profit from the current system. These include state enforcement agencies, private collection businesses, and women's groups that have sought higher financial benefits for divorce. Billions of dollars in federal funding have driven the system, creating a vast network of political friends. It was the reforms themselves that were largely responsible for bringing the child support collection industry into existence. Private collection agencies, such as the one owned by Robert Williams, keep approximately 15 percent of all the money they collect. The government enforcement system is also rewarded by an increase in federal funding in proportion to the amount collected. During the 1990s, these financial benefits led to a unique form of mutual support and power sharing between government and private agencies under the rubric of privatization. The coalition exerted enormous influence on government policy and managed a persuasive propaganda campaign against a group they labelled "deadbeat dads." Promoters projected substantial drops in welfare rolls by "forcing fathers to pay." Taxpayers were promised significant savings. But the promise was not substantiated by credible feasibility studies and the savings did not materialize. Significant reductions in welfare dependency were only experienced along with a general drop in unemployment. The reforms drove many fathers into debt and poverty, at times resulting in jail sentences for non-payment. The new system decreased their ability to spend time with their children, increased demands on temporarily unemployed fathers who sought reductions, forced low income fathers to work in the cash economy to survive, and even forced payments from some men who had never met the mother. Billions of dollars have been collected that cannot be dispersed. The Georgia court, rightly so, determined that the child support system subjects parents, especially fathers, to unnecessary government interference. Certain administrative procedures for setting and enforcing child support awards have also been declared unconstitutional in Michigan and Minnesota. Child support enforcement agencies exercise powers reserved for the judiciary. States have done little to reform their systems and it may take further action to compel states to operate constitutionally. The fate of the child support system is largely in the hands of attorneys, who need to make greater efforts to exercise the constitutional role of the judicial branch. At least twenty billion dollars has been paid in court costs and attorneys' fees in the process of arbitrarily increasing award amounts over ten years. That is approximately the total amount of child support legally due each year. Lawyers are now set to experience another windfall if guidelines are determined unconstitutional throughout the country as millions of non-custodial parents return to the courts to have their orders reduced to reasonable levels. The projected reduction in debt would take much of the wind from the sails of the child support collection industry, possibly eliminating financial influences that have distorted welfare reform efforts for more than two decades. This in turn could significantly reduce federal interest in operating a child support enforcement system that manages non-welfare cases. If courts are to continue to use child
support guidelines, greater emphasis needs to be placed on credible
engineering research and development. Designs need to be validated to
the extent possible before they are put into use and bad ideas need
to be rejected before they harm the public. The application of a presumptively
correct formula for determining child support awards is a profound deviation
from established constitutional process that demands careful and constant
scrutiny. Roger F. Gay is leader of the Project for the Improvement of Child Support Litigation Technology. |
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