Posted by: "email@example.com
Sat Dec 15, 2007 6:36 am (PST)
The following Georgia report is from another group. (thank you, Paige)
The link I'm enclosing is for Ohio.
Georgia's Child Support Guidelines Are Unconstitutional---------------
By William C. Akins
Prior to the adoption of Georgia’s Child Support Guidelines, codified in
O.C.G.A. § 19-6-15, (hereinafter the "Guidelines") in 1989, child support was
determined by balancing the needs of the child against the non-custodial parent’
s (hereinafter the "NCP") ability to pay. In Georgia and other jurisdictions
using similar criteria, this resulted in widely varying obligations. In an
effort to bring some predictability and uniformity to child support awards,
the federal government mandated the use of economically based numeric
guidelines as a requirement for a state’s continued receipt of federal funds under
Title IV-D of the Social Security Act.1
The Guidelines adopted by Georgia were taken, with little modification, from
those used by the State of Wisconsin (hereinafter the "Wisconsin Model").
Unfortunately for NCPs in Georgia, the Wisconsin Model was designed for use in
low-income and poverty situations in which the obligors pay little, if any,
income tax. As a result of the erroneous economic assumptions upon which these
Guidelines are based, low income NCPs are often pushed below the poverty
income level and higher income NCPs pay grossly excessive child support payments
which are tantamount to hidden alimony.2
Perversely, the federal laws in effect in 1989 rewarded states based on
total dollars of child support collected. Those laws were amended in 1998 to
reward efficiency of collection, rather than gross collections.3 That is, from
1989 to 1998, the federal government provided welfare and collection incentive
funds to the states based on the gross amount of the total child support
payments recovered from NCPs, thus creating a corresponding incentive to
establish support obligations as high as possible without regard to appropriateness
of amount. The 1998 revision bases welfare and incentive funding on the
percentage of child support awards collected, thus rewarding efficient recovery of
The effect of the earlier federal statute and Georgia’s adoption of
Wisconsin Style Guidelines is one of the most onerous child support schemes in the
country, and one which violates both substantive due process and equal
protection guarantees of the Constitutions of the United States and the State of
How do the Guidelines Work?
The Guidelines calculate presumptive child support obligations based on a
range of percentages of the NCP’s gross income with no consideration for
payroll deductions for federal and state income tax, social security, mandatory
insurance contributions, etc.4 Furthermore, current tax laws grant all tax
benefits to the custodial parent (hereinafter, the "CP"). 5 In Georgia, trial
courts are powerless to apportion tax benefits absent an agreement between the
parties.6 While the Guidelines provide some 18 bases for departing from the
presumptive award,7 there is no guidance as to how they are to be applied
and they are so seldom addressed as to be non-existent in any practical sense.
Let us examine how the application of Georgia’s Guidelines would affect a
hypothetical, typical couple.
Dick and Jane have filed for divorce. They have two children. Dick’s gross
income is $30,000 per year and Jane’s is $21,000. Assume that both pay federal
and state income taxes, medicare and social security, with no insurance or
retirement contributions, and that during their marriage, they both supported
their children from their combined after-tax, take-home pay of $41,069.
In the divorce, Jane is awarded physical custody of the children. Dick is
given alternating weekend and holiday visitation with some longer stretches in
the summer. He is also ordered to pay 25.5% (the mid-point percentage) of his
gross monthly income as child support, or $638. Dick’s after-tax, take-home
pay, from which he supported his children while married, is now $1,912. The
$638 he has been ordered to pay is in reality, then, 33% of Dick’s after tax
take-home pay. Thus, after paying his basic child support, Dick has $1,274
left from which to pay rent, utilities, automobile loans, insurance and
maintenance, food, health insurance, and clothing. In addition, he will also have to
pay to feed, house, and clothe his children during visitation periods, not to
mention birthday and Christmas presents.
Jane, on the other hand, now takes home $1,752 after taxes. She then
receives, tax-free, $638 from Dick for a total monthly net income of $2,390. It
should be noted that, even before receiving Dick’s child support payment, Jane’s
child tax credits and earned income credit of $246 ($2952 annually) almost
totally offsets the $248 in federal and state income tax, social security and
medicare for which she is liable. After taxes and child support, Jane now
nets $28,677 annually, or 70% of the combined marital net income. Dick’s after
tax, after child support net annual income is $15,296. Interestingly, Dick
makes 58% of their combined gross income of $51,000.
Assume that with only one child, Dick made $70,000 per year gross or $62,950
federal taxable income, and Jane made only $40,000 or $28,150 in federal
taxable income. After the divorce, Dick’s after-tax income would be $46,631
($70,000 less $14,300 federal income tax, $3,713 state income tax, $4,340 social
security tax and $1,015 Medicare tax). These calculations include the $4,300
federal standard exemption for Dick and $6,350 for Jane (as head of
household), a $2,750 personal exemption for each and a $2,750 child exemption and $500
child credit for Jane. Dick then pays Jane $14,000 (20%) per year as child
support, which is non-taxable income for Jane. Net after-tax, after child
support incomes? Dick makes $32,631 and Jane makes $45,533, or 14% over her gross.
It should be noted that such excess is not just a matter of a few dollars.
In the first example, Dick’s $638 monthly obligation is 15% or $81 higher than
in North Carolina, 28% or $141 more than South Carolina, 21% or $112 higher
than Alabama, and $11 higher than in Florida. In the second example, Dick’s
$1,167 obligation is 80% or $518 per month higher than the average obligation
for his and Jane’s income levels in all four of the aforesaid states.8 And
these figures presume no visitation. Any visitation arrangement would entail
further reductions. In addition, although these states’ guidelines consider CP
income, they ignore tax benefits, result in a higher standard of living for
the CP, and exceed actual child care costs.
And you thought divorce was an equitable proceeding.
The Economic Problems
The Guidelines are not based on sound economic principles. The economic
flaws in the Guidelines include, without limitation, the following:
(a) An intact family supports its children from both parents’ incomes.
Therefore, a sound method for calculating support awards requires consideration of
the CP’s income at some point in the calculation of the presumptive award.
The Guidelines do not do this, instead; they base the presumptive award solely
on the NCP’s income. The CP’s income is only addressed as a special
circumstance for departing from the presumptive award, which circumstance is seldom,
if ever, considered.
(b) The Guidelines create an obligation based on a percentage of pre-tax
income. In other words, a 17% obligation to a person who loses 35% of his income
to taxes and other involuntary deductions requires 26% of his after-tax
income to meet this obligation. Similarly a 23% award becomes a 35% obligation.
No economic study supports such a result. It is simply not based on child cost
(c) The absolute amount of money expended on children decreases as a
percentage of intact family spending as income rises. In other words, higher income
households do not spend as much of their income on their children as lower
income families. The Guidelines do not reflect this economic reality, however,
imposing a straight line percentage on all income levels without any cap.
(d) The Guidelines do not contain a provision for self-support reserve. That
is, an NCP whose gross income is just above the poverty level will be forced
below the poverty level by making support payments required by the
Guidelines, a result which is likely to add to the public assistance roll as the
result of government action. While the Guidelines allow this issue to be addressed
by a finder of fact on a discretionary basis, there is no assurance of
reasonably consistent application of such deviation.
(e) The economic study which underlies the Wisconsin Model upon which the
Guidelines are based states that "obligor-only" guidelines should only be used
at the poverty level, not for general application.
(f) The Guidelines result in presumptive awards so far above child rearing
costs as to result in the granting of hidden alimony without the satisfaction
of the requirements for alimony awards under Georgia law.
Dr. Robert Williams of Policy Studies, Inc. in Denver, Colorado, testified
at length before Georgia Commission on Child Support (the "Commission") on May
1, 1998. As to the use of guidelines designed for poverty/welfare cases, Dr.
Williams was asked "[w]hen the federal government mandated states adopt
presumptive-type guidelines and the advisory panel ... specifically recommended
against Wisconsin-style guidelines, is anything changed that would revise
those recommendations?" He replied, "there’s never been another advisory panel,
so I would say basically not.9
At least one state’s supreme court has held that the use of poverty level
guidelines for calculating support obligations at higher income levels is
irrational and inappropriate; although the decision was based on simple logic,
rather than constitutional grounds.10
The Due Process Problem
The Guidelines were enacted in 1989 to insure Georgia’s receipt of an
estimated $25,000,000 in federal funds.11 They were hastily adopted using the
Wisconsin Model to beat the federal deadline for enactment of guidelines.12 45
C.F.R. § 302.56(h) (1999) states in pertinent part, "a State must consider
economic data on the cost of raising children . . ." That no such study on the
costs of raising children in Georgia has been done, and that such a lack of
data is a problem, was admitted by the Commission in the Report to the Governor
from the Georgia Commission on Child Support (1998) (hereinafter, the
"Majority Report"). The Commission also recommended seeking federal funds to
conduct the federally mandated studies.
The United States Constitution provides that no state may "deprive any
person of life, liberty, or property, without due process of law."13 Similarly,
Georgia’s Constitution provides that "[n]o person shall be deprived of life,
liberty, or property, except by due process of law."14 Protection from
arbitrary state action is the very essence of substantive due process.15
The test to be applied in a due process analysis of governmental action
infringing on non-fundamental rights is whether or not the legislation was aimed
at a legitimate state objective and whether the means adopted are rationally
related to accomplishing that objective.16 Substantive due process
guarantees are said to be violated if the questioned state statute or a part thereof
is a patently arbitrary classification lacking any rational justification.17
It is readily conceded that the objective of the Guidelines, i.e. providing
a consistent basis for the award of appropriate child support, is a
permissible state objective. Note, however, that 45 C.F.R. § 302.56 (e) (1999)
mandates a review of each state’s guidelines every four years, "to ensure that their
application results in the determination of appropriate child support award
amounts." (emphasis added). The question then, is whether the means adopted,
i.e. the Guidelines, are rationally related to that economic objective.
To attack a statute on due process grounds, a showing must be made that such
government action is motivated, at least in part, by an improper purpose,
bias, or bad faith.18
One constitutionally impermissible motive is a governmental pecuniary
interest. For example, in Doss v. Long,19 the district court held that Georgia’s
"fee system" courts, in which judges were paid directly by the parties,
violated the federal due process clause. Given the direct link to federal funds
which motivated the legislature’s adoption of the Guidelines and which was
expressly articulated in H.B. 139, Act No. 543 (1989) (later codified as the
Guidelines) and recognized by the Court of Appeals in Department of Human
Resources v. Offutt,20 it is clear that the Guidelines were enacted almost
exclusively for a governmental pecuniary purpose. Furthermore, the complete failure of
the State to gather the objective economic data required to support the
Guidelines amounts, and the continued use of the Guidelines in the absence of
such data, render the adoption and application of the Guidelines an arbitrary,
bad faith exercise of governmental power.
This assertion of arbitrariness is buttressed by the State’s hasty adoption
of the Wisconsin Model. That scramble to beat the federal deadline is not
unlike the almost impromptu literacy test foisted on Florida’s high school
seniors in violation of both federal due process and equal protection guarantees
in Debra P. v. Turlington.21
The Majority Report admits that no study on Georgia child-rearing costs has
been conducted22 and justifies its assertion that no change in the
Guidelines is required, in part, with vague references to data from other states. This
is startlingly similar to the arbitrary and capricious conduct on the part
of the U.S. Forest Service set out in Sierra Club v. Martin.23 In that case,
the Forest Service approved certain timber projects in the Chattahoochee and
Oconee National Forests without sufficient studies of the projects’ impact on
endangered species. The Eleventh Circuit declined to defer blindly to the
Forest Service’s conclusions, holding that "[a]gency actions must be reversed
as capricious and arbitrary when the agency fails to ‘examine the relevant
data.’"24 Although decided under the Administrative Procedures Act,25 the
underlying rationale of Sierra Club v. Martin makes plain that such arbitrary
conduct cannot support a rational connection between the facts found and the
choices made. Thus, by analogy, Georgia’s adoption of a child support scheme
unsupported by economic data is irrational, regardless of the state’s
legitimate interests, and is, therefore, violative of due process. The State of
Georgia, by subjecting its citizens to a statutory child support scheme totally
lacking in supporting data, is also engaging in impermissible arbitrary and
capricious state action.
Although Dr. Robert Williams of Policy Studies, Inc., acknowledged in
testimony before the Commission that determining what portion of the CP’s household
costs could be defined as child support was not always easy, he was quite
clear that "it’s [the presumptive award amounts under the Guidelines] exceeding
what we estimate would have been spent on that child at those combined
income levels."26 In other words, Guideline-based awards exceed child-rearing
It is a further indication of the state’s arbitrary treatment of these
issues that by recommending no change, the Commission essentially ignores the
advice of the economists called to testify. In addition, the commissions
appointed to review the Guidelines have been composed, in large part, of individuals
who are unqualified to assess the economic validity of the Guidelines, or who
arguably have an interest in maintaining the status quo, or both. In 1998,
for example, of the 11 members of that Commission, two were members of the
judiciary, two represented CP advocacy groups, four were either present or
former child support enforcement personnel and two were state legislators who were
up for re-election.27 Only one, R. Mark Rogers, author of the Minority
Report, is an economist.
This lack of qualification and concern about reality-based results is
further exemplified by the Commission’s blind acceptance of such assertions as that
after divorce, the CP has a limited ability to earn additional income, and
the child’s standard of living drops significantly while the NCP’s rises,28
without a shred of supporting data. Such reliance on anecdote and general
impression has created the present inequitable situation.
It is also troubling that, while the language of O.C.G.A. § 19-6-15(a)
requires the NCP to provide health insurance where reasonably available, O.C.G.A.
§ 19-6-15(c)(16) does not require a deduction from the presumptive award for
the cost of said coverage, thereby allowing disparate results for similarly
situated NCPs. Nor does O.C.G.A. § 19-6-15(c) provide a method for mandatory
and consistent application of the factors for deviating from the presumptive
It should also be noted that the due process protection of Georgia’s
Constitution is greater than that of its federal counterpart which is construed in
most cases cited herein.29
The Equal Protection Problem
The federal regulations governing state plans for calculating child support
specifically provide that such awards shall be in amounts which are
"appropriate."30 By imposing an obligation on NCPs based on a percentage of their
gross income while the CPs (or, for that matter, any married or cohabiting
parents) pay from their net income, the resulting Guideline awards are not only
grossly inappropriate, but also violate equal protection guarantees. Such a
distinction of class and burden is in no way related to the legitimate
governmental purpose of providing economically appropriate support to Georgia’s
The United States’ Constitution provides that no state may "deny to any
person within its jurisdiction the equal protection of the laws."31 Georgia’s
Constitution also states that "[n]o person shall be denied the equal protection
of the laws."32 These protections are difficult to define with precision
and must be applied to the particular facts of each case.33
A reviewing court must apply different levels of scrutiny to a questioned
statute depending on the nature of the governmental classification.34 As the
instant case involves neither classification by race or national origin, the
strict scrutiny/compelling state interest test does not apply. Because the
Guidelines have a highly disproportionate impact on men as applied, however,
they discriminate on the basis of sex and must undergo the intermediate scrutiny
test, that is, that the statutory classification must be substantially
related to an important governmental objective.35
A survey of child custody awards in 14 south Georgia counties for the years
of 1995-97 was conducted by Kent Earnhardt, Ph.D., J.D. of College Park.36
That survey found that in contested custody cases, 82.22% of the custody
awards went to the mothers. Most domestic relations practitioners’ observations
would likely show a similar or higher percentage. Therefore, since the
application of the Guidelines overwhelmingly impacts men, it constitutes sex
discrimination in violation of equal protection.37
Even if the Guidelines did not discriminate on the basis of sex, under the
minimum scrutiny test, that is, whether the statutory classification bears a
rational relationship to a legitimate governmental purpose, they still violate
equal protection guarantees.
As with the due process claim, the analysis proceeds from the premise that
providing appropriate child support is a legitimate state objective and seeks
to ascertain whether the classification created by the Guidelines bears a
substantial or rational relationship to that purpose.
The equal protection clause of the United States’ Constitution does not
allow one group to be singled out for extraordinary burdens or benefits when such
classification is not rationally related to the state objective. That is,
similarly situated persons must be treated alike.38 The Guidelines violate
equal protection, by imposing a greater burden on NCPs and providing greater
benefits to CPs. Prior to being classified on the basis of custody, both parents
supported their children from after-tax, net income. Upon being classified,
however, one parent, the NCP, is suddenly required to support his children
from a totally different pool of funds, most of which he never receives. An NCP
must pay an amount equal to a given percentage of his gross income to the
CP. That payment is made from the NCP’s net income without any consideration
for involuntary reductions, or the CP’s income. The CP, who stands on exactly
the same footing as the NCP regarding parenthood, save for the fact of hav
ing primary custody of the children, is afforded a truly amazing windfall as
described in the examples of Dick and Jane.
In this regard, the Guidelines present a situation functionally similar to
that found in South Central Bell Telephone Co. v. Alabama.39 That case
involved a negative commerce clause challenge to Alabama’s corporate taxation
scheme in which domestic corporations were required to pay an amount equal to one
percent (1%) of the par value of their stock. By contrast, foreign
corporations were required to pay an amount equal to three-tenths of a percent (0.3%)
of the value of the actual amount of capital employed in Alabama. Domestic
corporations were granted great leeway in setting the par value of their stock
and otherwise reducing their tax base, which was not extended to their foreign
counterparts. The result of this scheme was that foreign corporations paid
approximately five times the tax required of domestic corporations. The
plaintiffs sued Alabama on equal protection and commerce clause grounds seeking a
refund of taxes paid. After the Supreme Court of Alabama upheld the tax sc
heme 5-4, the United States Supreme Court struck it down.
Although decided under the commerce clause employing the strict scrutiny
test, the Court’s decision clearly held that when similarly situated parties—
corporations doing business in Alabama—are required to pay a common obligation—
corporate taxes—from different "sources"—firmly fixed asset value versus
highly fluid, easily minimized stock value—based on a single statutory
distinction—domestic versus foreign status, the resulting disparity in the size of
the obligation violates the commerce clause of the Constitution of the United
Notwithstanding the fact that the Alabama tax scheme failed under the strict
scrutiny test used in commerce clause cases,40 the Court’s analysis
strongly suggests that the Guidelines would not withstand an equal protection
challenge under any level of scrutiny because, by analogy, the Guidelines’ require
that similarly situated individuals—parents—be required to pay a common
obligation—the support of their children—from different sources—gross income
versus net, after-tax income—based on a single, statutory distinction—custody
of the children.
As with the due process analysis, a discriminatory intent must be shown, but
such intent need not be the sole, primary or even predominant motive for the
questioned legislation.41 In the Guidelines, discriminatory intent is clear
as, by its very terms, only the NCP must pay child support based on gross
income without accounting for involuntary reductions that substantially reduce
disposable income or otherwise addressing the CP’s income.
In Georgia, both parents have an obligation to support their child(ren).42
No rationale justifies singling out the NCP on that basis alone and imposing
upon him (and, occasionally, her) a disproportionate financial burden while
awarding the CP a windfall of tax-free income and other benefits.
In Romer v. Evans,43 the Supreme Court scrutinized Amendment 2, a Colorado
statute which stated that homosexuals could not be granted any special
privileges by any governmental entity. Because homosexuality is not a suspect
class, the Court applied the minimum scrutiny test and reviewed the Amendment for
a rational relationship to a legitimate state end. In holding Amendment 2
unconstitutional on equal protection grounds, the majority noted that the
statute singled out a class of persons identified by a single trait, then denied
them protection across the board. The majority said that such a scheme is not
within our constitutional tradition as "[e]qual protection of the laws is not
achieved through indiscriminate imposition of inequalities."44 Worse, such
laws "raise the inevitable inference that the disadvantage imposed is born of
animosity toward the class of persons affected."45
By comparison, the Guidelines single out a class of persons by a single
trait, i.e. non-custodial parenthood. They then go on not only to impose a burden
on that class on a basis that is not rationally related to the statutory
objective, but, even worse than Amendment 2, also benefits a similarly situated
class, the CPs. All this is done in the complete absence of supporting
economic data and is contrary to demonstrated economic reality.
The Majority Report cautions that using the NCP’s net income would not be
desirable because net income is subject to too much variation. Presumably, the
concern was that an obligor might engage in creative accounting to
artificially lower his obligation. Every Georgian must pay (or be exempted from)
federal and state taxes, however, and most pay social security (F.I.C.A.) and
medicare taxes as well. In addition, many must pay mandatory insurance premiums,
union dues, and the like. Many states employ a definition of "adjusted gross
income" which sets forth specific deductions, thus eliminating creative
accounting as a concern.46 The State of Washington even allows a $2,000 annual
retirement contribution to be deducted prior to calculating the presumptive
award if the investment plan was in place prior to the divorce.47 Involuntary
reductions nonetheless are ignored by the Guidelines. Married parents,
cohabiting parents and CPs may take advantage of such reductions before supportin
g their children, but the NCP in Georgia may not. Although the degree of
this disparity varies somewhat with income level, the Guidelines create an
economic underclass (NCPs) and a relatively privileged class (CPs) out of
similarly situated persons without empirical data to justify the distinction.
The Guidelines also allow unequal treatment between similarly situated NCPs
by the use of a range of percentages. As required by federal regulation, the
state plan must be based "on specific descriptive and numeric criteria and
result in a computation of the support obligation," not a range of
computation.48 For a single child, for example, the Guidelines could result in one NCP
paying 17% while an identical NCP elsewhere (or, one who may have offended the
same judge in some way) will pay 23%.
As noted previously, where a child support case goes to trial, the trier of
fact is required to consider 18 possible reasons for deviating from the
presumptive award.49 Even assuming an NCP could afford a trial, there is no
factual basis for the amount or degree of deviation. Indeed, Dr. Williams told the
Commission that "what troubles me about this is that it doesn’t tell anybody
how you should deviate . . . you’re given a tremendous latitude for
variation, but you have no idea how that latitude is being exercised and whether it’s
being used to achieve results that are fair or not."50
Georgia’s Constitution provides equal protection guarantees that are
"coextensive" with those of the federal constitution.51 "[A]n arbitrary
classification, where there exists no real difference as concerns the purpose of the
legislation, is not allowed and constitutes a violation of the [Georgia]
Constitution notwithstanding an arbitrary attempt to classify and then discriminate
between those in different classifications."52
Thus, for the reasons stated, the Guidelines’ simultaneous imposition of a
greater burden on one class of similarly situated persons and a greater
benefit to the other violates the equal protection clause of both the state and
Other Constitutional Challenges
At least four other states’ child support guidelines have been subjected to
constitutional scrutiny, with three decisions upholding them,53 and one
finding an equal protection violation.54 The flaw in applying any of these cases
to an analysis of the Guidelines is that "[d]omestic relations is ‘an area
that has long been regarded as a virtually exclusive province of the States.’
No more varied patchwork quilt exists than with child support guidelines. Of
the fifty (50) states and the District of Columbia, 35 use an income shares
model (defined below), 11 use a percentage of obligor income and 5 use some
type of hybrid.56 Of the eleven using a percentage of obligor income only
three, Wisconsin, Georgia, and Nevada, use total gross income in their
evaluations without adjustment for any involuntary deductions. Nevada’s percentages
are significantly lower than Georgia’s and have an upward limit of Five Hundred
Dollars ($500) per child.57 Wisconsin also used lower, fixed percentages
and allows some deductions for business expenses.58 Neither Wisconsin’s
guidelines nor Nevada’s appear to have been challenged on constitutional grounds.
None of the constitutional challenges in the four cases noted above were
based on the arguments urged in this article, even though the equal protection
and due process clauses were cited in support. Therefore, the use of cases
construing other states’ guidelines is of little or no value in assessing the
constitutionality of Georgia’s Guidelines.
What About the Children?
As stated earlier, Georgia’s child support scheme is unique. Even the
minority of other states that base support awards solely on the NCP’s income, known
as "Obligor Only Models," afford some degree of relief for involuntary
payroll deductions. The majority of states, some 35 or so, use an Income Shares
Model. This formula proceeds from the premise that, since the children of
intact families are supported from both parents’ incomes, both incomes should be
accounted for in calculating the presumptive obligation. This model then takes
an amount of support for a given number of children at a given income level
(based on an actual study of child-rearing costs) and assesses an award based
on the percentage the NCP’s income bears to the combined income of both
parents. The Guidelines ignore the CP’s income and duty of support except as a
reason to deviate from the presumptive award. As a practical matter, Georgia
courts seldom consider those statutory special circumstances. It is unreaso
nable to assume that the other 49 states in the country fail to provide
adequate support for their children.
What About Jane?
As is obvious in the earlier examples, Jane receives a huge transfer of
income under the Guidelines. If one made no other change to the Guidelines than
requiring that the calculation of the presumptive award be based on Dick’s
after-tax income, in Example 1, Dick’s monthly take-home pay would be $1912, his
support obligation for two children (25.5%) would be $488 instead of $638
and Jane would still net $2240 instead of $2390. In the higher income, one
child scenario of Example 2, Dick’s monthly take-home pay is $3,886, his support
obligation (20%) is $777 instead of $1,167, and Jane’s after-tax, after child
support net income would be $3405 instead of $3794. After paying support,
Dick would still have $816 and $296 less monthly income than Jane,
respectively. Given the absence of economically sound child cost data from Georgia,
however, it is unlikely that even these figures are economically appropriate,
although they are likely somewhat closer.
What About the Juries?
The Majority Report notes that Georgia is the only state in the country that
allows juries to set child support awards and expresses concern that they
might not be able to calculate awards based on an Income Share Model or decide
what deductions to allow under an Obligor Only Model. In fairness to that
position, calculating the presumptive award can get quite complex when factoring
in childcare costs, pre-existing support obligations, contributions of new
spouses to household income, sums spent during visitations, etc., but
simplicity does not necessarily equate to constitutionality. To this dilemma, there
are several possible solutions of varying merit.
First, Georgia could join the rest of the country by taking the decision
away from juries. This is undesirable, particularly at present, because jurors’
experience with child rearing and the attendant costs is far more likely to
result in appropriate awards. An alternative would require the trial judge to
calculate the presumptive award and then charge the jury on the special
circumstances for departing from that award. Another solution would involve the
use of court-appointed financial experts who could use the parties’ financial
affidavits and discovery disclosures to calculate the presumptive award.
Fourth, some type of Income Shares Model could be devised which addressed many of
the above factors in calculating the set amount of support for each income
level, or finally, Georgia could adopt the CRC Model Guideline discussed below.
There is a "Better Mousetrap"
In a 1994 article, Donald J. Bieniewicz, an economist with the Office of
Policy Analysts, U.S. Dept. of Agriculture who also works closely with the
Children’s Rights Council ("CRC") in Washington, D.C., sets forth an economically
sound child support guideline based on actual, direct child costs whenever
possible and on recent, more accurate government survey data where they are
not.59 The CRC guideline takes both parents’ incomes into account, as well as
visitation costs to the NCP, tax benefits related to the child(ren), etc.60
It also looks to the incremental costs attributable to a child. For example,
after a divorce, the CP moves into a two-bedroom apartment with one child.
Many previous studies and guidelines based thereon would erroneously assign
50% of the rent as a child cost. In fact, the true child cost is the difference
between a one bedroom unit and a two bedroom unit. Add a second child of
appropriate age and gender to share a room and that second child has no
incremental housing cost.61
Bieniewicz specifically states that guidelines which simply award a fixed
percentage of NCP’s gross income have "too many liabilities to be acceptable."
He goes on to say that such guidelines "fail to consider, respect and
encourage parenting by the non-custodial parent. Also, they are too crude—at high
incomes generating support awards that are well beyond the reasonable needs of
children . . ."62
Since the stated goal of the CRC Model Guideline is "not only to ensure that
the financial needs of the children are met, but to seek to assure that the
emotional needs of the children are met, as well,"63 the State of Georgia
would do well to implement it on an interim basis in place of the plainly
flawed Guidelines that now exist, and to use the CRC’s methodology in preparing
the mandated study of child-rearing costs in Georgia.
What about Enforcement?
With the changes in the federal incentive laws enacted in 1998, the State of
Georgia would stand to gain if it had more reasonable guidelines, because
the efficiency of collection would improve almost automatically.
As more and more onerous sanctions for failure to pay child support are
enacted, frequently involving loss of drivers’ and professional licenses
(including lawyers’), greater attention should be directed to what it is that is
being enforced. True "deadbeat" parents should be punished, but having an
unreasonably high support scheme artificially creates deadbeats and risks reducing
NCPs’ ability to earn what these licenses permit. The result of these
increasingly draconian measures is that the NCP’s income goes down as does the amount
going to the children.
In 1989, Georgia’s legislature rushed to put a law on the books primarily to
obtain $25,000,000 in federal funds and, only coincidentally, to provide
less variation in child support awards. The vehicle they chose, the Guidelines,
was and is seriously flawed, both economically and constitutionally, and NCPs
suffer harm every time a payment is made. Without commenting on the motives
of those who have left such a vehicle in place for ten years, or pondering
what representations have been made to the federal government over that time to
continue the funding in the absence of the mandatory studies, it is
sufficient to say that it is long since time for the Guidelines to be fixed. They
impose an arbitrary and unequal burden on one of the two most important people
in the life of every child in Georgia. This heavy handed and insensitive
disparity creates rancor and ill-feeling between parents that will inevitably
trickle down to the innocent child. The Guidelines also prolong domestic liti
gation by making custody of the children and the resulting support award an
unjustifiably high-stakes affair. It is time for Georgia to scrap these
arbitrary guidelines and adopt equitable and economically sound guidelines that
consider the actual costs of raising children and the ability of both the NCP
and CP to meet those costs.
William C. Akins, an Assistant District Attorney for the Mountain Judicial
Circuit, received his B.A. from the Citadel in 1976 and his J.D. from Woodrow
Wilson College of Law in 1983. He gratefully acknowledges the editorial input
of Nina M. Svoren and Sean A. Black, general litigation practitioners in
Toccoa, Georgia, and the assistance of R. Mark Rogers, a research economist at
the Federal Reserve Bank of Atlanta.
1. 42 U.S.C. §§ 651, 669b (1994 & Supp. II 1996); 45 C.F.R. §§ 302.55,
2. See generally R. Mark Rogers, Wisconsin-Style and Income Shares Child
Support Guidelines: Excessive Burdens and Flawed Economic Foundation, 33 Fam. L.
Q. 135, 139-41 (1999).
3. The Child Support Performance and Incentive Act of 1998, 42 U.S.C. § 658a
(1994 & Supp. IV 1998).
4. O.C.G.A. § 19-6-15(b) (1999).
5. 26 U.S.C.A. §§ 32, 152, 501 (West Supp. 2000); see also Department of
Treasury, Forms and Instructions, Schedules X and Z in 1999 1040.
6. Blanchard v. Blanchard, 261 Ga. 11, 12-15, 401 S.E.2d 714, 715-17 (1991);
Bradley v. Bradley, 270 Ga. 488, 488, 512 S.E.2d 248, 249 (1999).
7. O.C.G.A. § 19-6-15(c) (1999).
8. These are approximations based on the plain language of those states’
guidelines. See Ala. Rules of Judicial Admin. Rule 32; Fla. Stat. Ann. § 61.30
(West Supp. 2000); N.C. Gen. Stat. § 50-13.4 (1999); and S.C. Code Ann. §§
43-5-580 (b) (West 1985 & Supp. 1999), 20-7-852(A) (West Supp. 1999).
9. Tr. of testimony of Dr. Robert Williams before the Georgia Commission on
Child Support at 93 (May 1, 1998) [hereinafter Dr. Williams].
10. See Smith v. Smith, 626 P.2d. 342, 345-48 (Or. 1980).
11. F. Cullen, Selected 1989 Georgia Legislation — Domestic Relations, 6 Ga.
St. U. L. Rev. 133, 227 n.4 (1989).
12. R. Mark Rogers, Minority Report of the Georgia Commission on Child
Support at 14 (1998).
13. U.S. Const. amend. V; id. amend. XIV, § 1.
14. GA. Const. art. I, § 1, ¶ 1.
15. See Slochower v. Board. of Higher Educ., 350 U.S. 551, 559, 76 S. Ct.
637, 641 (1956); Tolchin v. Supreme Court of N. J., 111 F.3d 1099, 1115 (3d
16. Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 460-61 (2d Cir. 1996).
17. United States v. Neal, 46 F.3d 1405, 1409 (7th Cir. 1995), aff’d, 516
U.S. 284 (1996).
18. Ersek v. Township of Springfield, 102 F.3d 79, 893 n.4 (3d Cir. 1996).
19. Doss v. Long, 629 F. Supp. 127, 130 (N.D. Ga. 1985).
20. Department of Human Resources v. Offutt, 217 Ga. App. 823, 825, 459
S.E.2d 597, 599 (1995).
21. Debra P. v. Turlington, 644 F.2d 397, 404, 406 (5th Cir. Unit B May
22. Report to the Governor from the Ga. Comm’n on Child Support at 2 (1998)
(hereinafter Majority Report).
23. See Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999).
24. Id. at 5.
25. 5 U.S.C. § 706 (1994).
26. Dr. Williams, supra note 9, at 20.
27. See Majority Report, supra note 23, at signature page.
28. Id. at 3.
29. See Suber v. Bulloch County Bd. Of Educ., 722 F. Supp. 736, 744 (S.D.
30. 45 C.F.R. § 302.56(e) (1999).
31. U.S. Const. amend. XIV, § 1.
32. Ga. Const. art. I, § 1, ¶ 2.
33. See Safeway Stores, Inc., v. Oklahoma Retail Grocers Ass’n Inc., 360
U.S. 334, 340, 79 S. Ct. 1196, 1200-01 (1959).
34. Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 1914 (1988).
35. See Caban v. Mohammed, 441 U.S. 380, 388, 99 S. Ct. 1760, 1766 (1979);
Sims v. Sims, 243 Ga. 275, 276, 253 S.E.2d 762, 762 (1979); Stitt v. Stitt,
243 Ga. 301, 301, 253 S.E.2d 764, 765 (1979).
36. Kent Earnhardt, Georgia Selected Counties Child Custody Survey
(unpublished manuscript on file with author).
37. Cf. Searcy v. Williams, 656 F.2d 1003 (5th Cir. 1981), aff’d, 455 U.S.
984 102 S. Ct. 1605 (1982).
38. Truax v. Corrigan, 257 U.S. 312, 333, 42 S. Ct. 124, 130 (1921); Caban,
441 U.S. at 391, 99 S. Ct. at 1767; Bickford v. Nolen, 240 Ga. 255, 256, 240
S.E.2d 24, 26 (1977).
39. South Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 119 S. Ct. 1180
40. See Fulton v. Faulkner, 516 U.S. 325, 346-47, 116 S. Ct. 848, 861
(1996). But see Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 874-83, 105 S.
Ct. 1676, 1679-84 (1985).
41. United States v. City of Yonkers, 96 F.3d 600, 611 (2d Cir. 1996).
42. O.C.G.A. § 19-7-2 (1999).
43. Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620 (1996).
44. Id. at 633, 116 S. Ct. at 1628.
45. Id. at 634, 116 S. Ct. at 1628.
46. Miss. Code Ann. §§ 43-19-101 to 103 (1999); N.H. Rev. Stat. Ann. §§
458-C:1 to 7 (1992).
47. Wash. Rev. Code Ann. §§ 26.191-.100 (West 1997).
48. 45 C.F.R. § 302.56(c)(2) (1999).
49. O.C.G.A. § 19-6-15(c) (1999).
50. Dr. Williams, supra note 9, at 18.
51. Grissom v. Gleason, 262 Ga. 374, 376, 418 S.E.2d 27, 29 (1992).
52. Simpson v. State, 218 Ga. 337, 339, 127 S.E.2d 907, 908 (1962).
53. Boris v Blaisdell, 142 Ill. App. 1034, 492 N.E.2d 622 (1986); P.O.P.S.
v. Gardner, 998 F.2d 764 (9th Cir. 1993); Coghill v. Coghill, 836 P.2d 921
54. County of Orange v. Ivansco, 67 Cal. App. 4th 328, 78 Cal. Rptr. 886
55. Blaisdell, 492 N.E.2d at 629.
56. Jane C. Venohr, Ph.D. and Robert G. Williams, Ph.D., The Implementation
and Periodic Review of State Child Support Guidelines, 33 Fam. Law Q. 7
(Spring 1999). It should be noted that this author disagrees with the
characterization of the income base for the guidelines in the states of Mississippi and
New Hampshire employed by Venohr and Williams. Those states use an adjusted
gross which is much closer to net rather than the true gross basis of Georgia,
Wisconsin and Nevada.
57. Nev. Rev. Stat. §§ 125-B.070, .080 (1998).
58. Wis. Admin. Code (DWD) 40.01-.05 (2000).
59. Office of Child Support Enforcement, Admin. for Children and Families,
U.S. Dept. Health and Human Servs., Child Support Guidelines: The Next
Generation 104-25 (Apr. 1994).
60. See id. at 113-16.
61. See id. at 108.
62. Id. at 105 (emphasis added).
63. Id. at 104.