On April 29, 2003, the Supreme Court of Georgia entered an opinion in
Georgia Department of Human Resources v. Sweat et al, reversing Atkinson
County Judge C. Dane Perkins' order finding Georgia's child support guidelines
to be unconstitutional based on violations of substantive due process,
equal protection, individual's right to privacy, and Georgia's taking
clause.
The Georgia Supreme Court determined that the lowest standard of scrutiny
should be applied because there is no discrimination and non-custodial
parents are not a suspect class. According to the Supreme
Court, the guidelines meet a government purpose of "ensuring that
adequate support is provided for Georgia's children whose parents have
divorced or separated." The Supreme Court states that there
is a rational relation between the guidelines and this purpose. The Court
also stated, "Moreover, the Guidelines' means of determining the
amount of support to be paid are not arbitrary in any sense of the word."
Daryl LeCroy, lead attorney for Appellee Ms. Michelle Sweat, commented
on the opinion,
"Prior to a divorce, parents are 'similarly situated' regarding their
children. If, after a divorce, both parents had equal income and equal
parenting time, the parents would still be similarly situated, and minimum,
if any, child support would be appropriate. In 1991, the Georgia
legislature declared that joint custody after divorce is 'the policy of
this state.' The Supreme Court has now, in the Sweat decision, held that
divorced parents are not similarly situated when it comes to custody,
and the legislature can therefore treat them differently. One issue with
which I disagree with the Supreme Court is whether the difference in treatment
of parents by the Georgia Child Support Guidelines is justified by the
different roles of 'custodial' and 'non-custodial' parents, in light of
the Georgia statute which states that the parents have an equal duty of
support. I doubt that many non-custodial parents believe our current
guidelines reflect an equal duty of support, especially since they currently
have no relationship to child costs."
LeCroy said that this decision will be appealed to the Supreme Court
of the United States.
"If the case is accepted by the U.S. Supreme Court, I am confident that
the Georgia Supreme Court's decision will be overturned, validating Judge
Perkins' sound legal arguments at the trial court level."
The Georgia high court has yet to address additional constitutional issues
pending in appeals of other cases concerning child support issues. Two
cases have raised the issue that Georgia's guidelines do not comply with
federal regulations on child support guidelines and are unconstitutional
due to the Supremacy Clause of the U.S. Constitution.
While these cases continue on appeal, as a practical matter, the focus
needs to be on setting child support awards that conform to the latest
Sweat decision yet offer some economic equity. In the Sweat decision,
the high court stated that the 18 deviation factors contained in the statute
are important parts of the guidelines for ensuring both parents contribute
fairly to child support. It is appropriate that Georgia develop
case law as found in other states for instructing how to apply these 18
factors consistently.