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Georgia judge declares child support guidelines unconstitutional


Most who arrived at this page and have an interest in child support issues are aware of the fact that child support, almost without exception, has little to do with common sense but everything with burdening non-custodial parents with a punitive tax that is ostensibly intended to look after "the best interest of the children," a tax that instead appears to have the primary goals of:
  1. Giving custodial parents, usually mothers, a financial incentive to take their children and walk out of their marriages, most likely to expunge their children's fathers from their children's lives;1

  2. Punishing non-custodial parents, usually fathers, often to the point where they become destitute and commit suicide;2

  3. Funding the growth and existence of a massive bureaucracy intended for the collection and distribution of child support moneys.3

It appears that radical forces are behind the creation and furtherance of the child support industry, but they are by no means the only force driving the system.

Radical forces see little value in having fathers involved in children's lives and appear to be using child support legislation as a deterrent that is nothing other than a tool for the destruction of our families or to prevent their formation, but it would be wrong to assign all of the blame to them.

Child support legislation has become an incentive for a lucrative business, not only for the child support collection industry but also for lawyers.  In the lower courts, about 40 percent of all cases heard deal with child support and child access issues. In the higher courts, such as the Ontario Superior Court, 80 percent of the case load deals with those issues.

However, the financial incentives are substantial for custodial parents to file for divorce and to claim the children of their marriages or even extramarital children as cash prizes and inexhaustible sources of income.

Much has been written about those issues elsewhere and by others.  Therefore I'll not go into more detail pertaining to them.

Child support guidelines seem to reflect an international consensus.  They are much the same the world over and cause enormous devastation of family assets the world over.   Some child support awards have reached truly astounding levels, more than US$300,000 per month.

Not one constitutional challenge launched by fathers was ever successful anywhere.   That may well have been because any such challenges were launched by men, whereas women usually had little to complain about, because the implementation and application of punitive child support guidelines generally affected only men.

What makes the child support guidelines especially onerous is that they generally do not take into account the combined incomes of both parents and do not allocate equitable shares of the costs of child raising to both parents. 

Usually the guidelines are designed or applied such that only the gross income of a non-custodial parent is taken into account when calculating child support amounts to be paid.  Not only are the guidelines in general applied only to the non-custodial parent's income, but not even the costs of child care by the non-custodial parent are taken into account when child support award amounts are calculated, unless, ostensibly, child custody is equally shared between the parents of a child.  However, even then there is a net flow of cash from the higher-income-earning parent to the lower-income-earning one, with little objectivity being applied in how the amounts to be transferred are to be calculated.

There is always the cash prize of having primary custody.  In Canada, for example, considerations of the costs of child-raising to the payor-parents are not taken into account unless their children are in their care for more than 40 percent of parenting time.  The parents who receive the primary custody awards will therefore often do their very best to make sure that the share of parenting time for the payor-parents will stay below the magical 40 percent figure, to receive the maximum benefits calculated on the basis of the child support guidelines that were written so as to favour them enormously.4

Along comes one of the rare cases of a mother who was ordered to pay child support to the custodial father of the children she had with him.  Unlike many men, for whom the child support amounts to be paid often approach and exceed the total amount of money they earn, this Georgia mother, Michelle Sweat, merely had to pay the amount of US$531.30 out of her monthly gross income of US$1,585.95.  However, she was ordered to pay that amount contrary to the agreement she had made during her divorce from the father, namely that she was not required to pay child support.

Subsequently, the mother's monthly gross income rose to US$1,862.  Her expenses total7ed US$2,127.00 at that time, and she filed for bankruptcy under chapter 13, following which her payments to the Chapter 13 Trustee were set at $295.00 per month. That monthly payment had apparently not been considered in calculating the child support amount she had been ordered to pay.  Thereupon she filed a constitutional challenge.

On February 25, 2002, the Honourable C. Dane Perkins, Judge of Superior Court, Alapaha Judicial Circuit, State of Georgia, agreed with her challenge.

The judge determined that the only credible evidence supporting the challenge was contained in:

...the study of custody awards in 14 south Georgia counties between 1995-97 conducted by Kent Earhardt, J.D., Ph.D., which found that, in 82.2% of contested cases, custody was awarded to the mother. It follows, therefore, that a support obligation under the Guidelines was imposed on the fathers in those cases. Ehlers v. Ehlers, 264 Ga. 668 (1994). There has been no credible challenge to the methodology or the result of the Ear[]hardt study. Therefore, this Court finds that men are adversely impacted by the Guidelines as applied to a grossly disproportionate degree, which constitutes an impermissibly discriminatory effect on a group based upon their gender.

The points discovered in the FINDINGS OF FACT are as follows:

  1. The Guidelines adopted by Georgia as originally designed by the underlying economic study were intended only for welfare situations - the current use for all situations was not the intended purpose. The underlying facts of the [original] presumptions ...no longer exist. The presumptive percentages were based only on data for low-income cases and were extended without the benefit of data for non-welfare cases....

  2. Georgia's presumptive awards rise as a share of obligor after-tax income. No child cost studies show child costs rising as a share of after-tax income. All child cost studies show child costs declining as a share of after-tax income. The state has presented no evidence that child costs rise as a perc[e]ntage of household net income. ....

  3. There are no baseline components to the Guidelines. It is not clear what is being rebutted, therefore they are arbitrary and a due process violation.

  4. The Guidelines do not take into account the large tax-related child cost offsets the custodial parent receives. ....

  5. The presumptive award results in the custodial parent receiving a huge financial windfall - or profit - in excess of child costs. ....

  6. The Georgia presumptive award does not allocate the child support burden according to the parents' relative ability to pay....The outcome is that the custodial parent does not contribute to child costs at the same rate as the non-custodial parent and, often, not at all.

  7. Evidence presented ...show that the Guideline presumptive awards include such large amounts of hidden alimony (presumptive award less an economics based award) that a non-custodial parent is unable to provide for a child when in the non-custodial parent's care to the same extent as in the custodial parent's household. Presumptive awards have been shown to typically exceed total actual costs [of child raising] according to the U.S. Department of Agriculture....Such excessive child support awards are not in the best interest of the child...[and] leave[] the non-custodial parent in poverty while the custodial parent enjoys a notably higher standard of living.

  8. The Guidelines are biased toward including hidden alimony for the custodial parent even when the custodial parent earns substantially higher gross income than the non-custodial parent. The Guidelines do not meet standards of fairness even for alimony....

  9. The use of a range of percentages allows substantial opportunity for similarly situated individuals to receive dissimilar treatment. That is, different obligors with the same income can end up with presumptive obligations that differ by hundreds of dollars per month....

  10. The presumptive award for low-income obligors (for example, minimum wage workers) pushes low-income obligors below the poverty level. A presumptive award that leaves the obligor with less income than needed for basic living needs creates an extraordinary burden for the obligor and, potentially, an additional burden on taxpayers. This violates equal protection. This is contrary both to public policy and common sense.

  11. The Guidelines do not take into account custodial parent income. The presumptive child support award does not vary with family income - only obligor income. This is not economically rational and violates equal protection....

  12. Child costs of only the custodial parent are covered by the Guidelines. Similar costs incurred when the child is with the non-custodial parent do not receive similar consideration....Each parent has an equal duty to provide financially for the children when in the care of the other parent....in actual practice, typically the non-custodial parent is not absent and incurs substantial child costs that the guidelines do not require the custodial parent to contribute. This violates equal protection and does not meet the financial needs of the children when they are in the care of the non-custodial parent...

  13. Medical insurance costs are not treated the same for all obligors. The presumptive award includes typical medical expenses. The Guidelines allow the court to either treat an obligor's payment of the children's medical insurance as an add-on or as a credit toward the presumptive award. This dissimilar treatment violates equal protection....The difference between these alternatives is $140 per month for the obligor [Michelle Sweat].  

  14. The Guideline criteria for deviation do not give any guidance on how to apply the deviations in a consistent manner. This is unconstitutionally vague and generally results in no deviations in most cases - even when the circumstances to deviate exist.

  15. The Guidelines are arbitrary and bear no relationship to the intended federal purpose of determining an economically appropriate child support award. The Guidelines have no rational relationship to child cost data....The Guidelines do not take into account where the actual child costs are incurred - that is, which parent incurs what costs. The Guidelines do not take into account child costs net of tax benefit offsets.

  16. The Guidelines bear no relationship to the constitutional standards for child support of requiring each parent to have an equal duty in supporting the child.

  17. Which parent is the obligor and which is the obligee should be determined only after examination of the relevant factors - not before. The financial circumstances should determine which parent is obligor. The Guidelines arbitrarily presume that the obligor is always the non-custodial parent when the financial circumstances may indicate just the opposite. Importantly, mere classification before-hand of the obligor does not provide sufficient information to determine the economically appropriate award. The classifications of obligor and obligee are not rationally related to the intended purpose of the Guidelines of determining the economically appropriate award.

  18. The Guidelines interfere with a non-custodial parent's constitutional right to raise one's children without "unnecessary" government interference. The Guidelines are so excessive as to force non-custodial parents to frequently work extra jobs for basic needs - detracting from parenting without state justification. Low-income obligors are frequently forced to work in a cash economy to survive as a result of child support obligations that if paid push the obligor below the poverty level. This is the result of automatic withholding of child support with payroll jobs and use of guidelines that presumptively push minimum wage obligors below the poverty level. As these workers are forced to "disappear" into unofficial society, these obligors are deprived of the constitutional right to raise their children without unnecessary government intrusion. In fact, any government mandate beyond basic child costs interferes with this right to privacy as occurs with the current guidelines.

    For the current case, the presumptive award pushes Ms. Sweat, the obligor, to just above the poverty level and below the poverty level if she pays court ordered bankruptcy payments. This is an extraordinary burden imposed on the obligor by the Guidelines.

  19. In the present case, the earnings of the obligee, Samuel Sweat, significantly exceed those of the obligor. Nonetheless, the guidelines require the obligor, Michelle Sweat, to pay out a significant amount of her before tax income to the obligee, to whom this money will be tax free. The income of the obligee will be considerably increased, and he will have the tax advantages attendant to being a custodial parent. Additionally, the obligee will have the additional benefit of his new spouse's earnings. In the meantime, the obligor's net earnings will probably put her at or below the poverty line, and will in any event leave her with less than half of her earnings to live on. This scheme thus constitutes a windfall to the obligee and financial disaster to the obligor.

    Thus, any calculation of a support award under the Guidelines would be so far removed from any economically rational and appropriate award that it constitutes a gross error well beyond any "mere imprecision."

(Without any doubt, these circumstances are much the same in Canada and elsewhere.)  Judge Perkins of the Georgia Superior Court then covered in his decision the constitutional issues to be considered with respect to the evidence assessed in the Finding of Facts and with respect to issues of Due Process [of the law] according to precedents.

It is remarkable and refreshing to see a judge state the issues at hand so clearly and so precisely:

....Given the very nature and purpose of the Guidelines, this Court finds that there is an overriding governmental pecuniary purpose involved. D.H.R. v. Ofutt, 217 Ga. App. 823 at 825 (1995).

This Court finds that the Guidelines were hastily enacted and left unchanged without sufficient examination of relevant economic data and for those reasons as well as the gross deviation from all child cost studies as noted previously, finds them to be arbitrary and capricious. See, Sierra Club v. Martin, 168 F. 3d 1 (11th Cir., 1999).

With all due respect to the members of the Governor's Commissions on Child Support (hereinafter, the "Commission") in both 1998 and 2001, it is clear that only one member in 1998, Mr. Mark Rogers, and none in 2001 were properly qualified by education, background and experience to accurately assess the economic and financial intricacies of the Guidelines. This, too, the Court finds to be indicative of arbitrary state action.

....This Court finds that this constitutes further proof of arbitrariness on the part of the State and, if left in place, may rise to a volitional violation of the constitutional protections afforded the citizens of this State.

With respect to issues of equal protection, judge Perkins stated:

....The egregiously different burdens and benefits placed on persons similarly situated but for the award of custody, i.e., parents with the obligation to support their child(ren) and the same means for doing so as when they were married, has been explained at length above. This Court finds that such disparate treatment violates the guarantees of equal protection....

Relating to the right to privacy, he stated:

...it has been long recognized to apply to "family" concerns whether the family exists within the confines of marriage or not....

....by requiring the non-custodial parent to pay an amount in excess of those required to meet the child's basic needs, as the economic analysis has shown, the Guidelines impermissibly interfere with parental decisions regarding financial expenditures on children....

In regard to unconstitutional taking of property, he stated that the state-induced poverty in which Michelle Sweat finds herself will prevent her from being able to afford to buy the court transcripts that she'll need, if required, to make an appeal, and therefore ordered the State of Georgia to pay for the required transcripts.
   Furthermore, he stated that, in "seeking to impose an award under the Guidelines against Ms. Sweat for the purpose of the state continuing to receive federal funds," Georgia's Department of Human Resources' action "constitutes a public taking for a public purpose."

About recent supporting foreign opinion, the judge stated:

One issue of equal protection is taking into account all of an obligor's dependents - not just those involved in the instant case.....Any formula for deviation on this matter that Georgia DHR may have is not presumptive, is not statutory, and is not applied statewide in all cases in which an obligor has additional dependents other than those in the instant case....Guidelines without such presumptive formula likewise violate equal protection requirements as related to multiple family situations and are unconstitutional.

With respect to the constitutionally acceptable child support standard, the good judge stated that,

This Court finds, as a matter of law, that a constitutionally sound standard for the determination of child support guidelines can readily be determined.

First, it must acknowledge the principle ...that both parents are obliged to support their children in accordance with their relative means to do so. The Supreme Court of the United States has provided ample reason to conclude that any guideline discriminating against either parent would be found constitutionally defective....The decisions of our sister States in holding unconstitutional statutory presumptions that custody of children of "tender years" should be awarded to the mother is also persuasive....Procreation is both a joint act and a joint responsibility.

Secondly, it must conform to long-acknowledged limitations on government intrusion into the rights of families....That is, the government's interest in family expenditures on children, whether that family exists before or after the dissolution of marriage, or even in the absence of marriage, is limited to insuring that the children's basic needs are met. Not extravagances, not luxuries, but needs. Once that occurs, government intrusion must cease....

The third and final criteria is that the means chosen for the purpose of determining need and allocating each parent's respective responsibility in meeting that need, whether in the form of a presumptive guideline or otherwise, must be based on a rational relationship between the predicate facts and the conclusion(s) directed....

This standard is not dissimilar to the former needs vs. ability to pay standard, but with the additional criteria that the needs are not excessive, the ability to pay is that of both parents and that the method of calculation is economically rational.

As explained above, the Guidelines fail miserably in meeting these standards.

CONCLUSION

In light of the Georgia child support guidelines being unconstitutional, Michelle Sweat shall not be required to pay Samuel E. Sweat any child support based upon her gross income of $1,862 per month, the father's gross income of $2,647.50 per month, and the mother having parenting time with the children at least 20 percent of the time. The mother shall, however, continue to provide health insurance for the children which currently costs approximately $70 per month for so long as it is available through her employer. The mother shall also pay 14.3 percent of any unreimbursed medical expenses of the children that exceed $250 per year. This percentage is based on her share of combined income above self-support needs.

For the foregoing reasons, the Defendant's Motion to Declare Georgia's Child Support Guidelines Unconstitutional is hereby GRANTED.

SO ORDERED this _25th___ day of __February_, 2002,

_______________________________

HONORABLE C. DANE PERKINS
Judge of Superior Court
Alapaha Judicial Circuit
State of Georgia

The full text of the judgment.

See also the research upon which much of judge Perkins's decision was based:

GuidelineEconomics.com

A Division of R. Mark Rogers, Economic Consulting

GuidelineEconomics.com Home Page Child Cost Research and Consulting

Update 2006 03 20: Contrary to his own 2002 ruling, Judge Perkins now awards custody and child support to a mother who walked away from her family.  The Judge ordered that sole custody - that had been in place for three years - be taken away from a Georgia man, awarding him standard visitation rights: one weekend every 14 days. 

The object of the "legal" battle, a 12-year-old girl, was not asked by the judge about her wishes as to which parent she would like to be with.  The girl wants to stay with her father. 
    Should anyone be surprised that Judge Perkins ordered that the daughter be with her mother who had abandoned her three years earlier?
    The mother in this case made just one child support payment to the custodial father throughout the three years.  That payment was for a monthly amount set at about half of what the previously custodial father has now been ordered to pay to the mother each month.  However, after the father had recently obtained court-ordered child support from the mother for the first time, the mother suddenly remembered that she wants to be a mother with custody of her daughter as a steady source of income from the father who is a paraplegic having been in a wheelchair for the past 13 years. 
    Details of the current state and circumstances of this case will be shown here in short order.

________________
Notes:

  1. Richard Kuhn and John Guidubaldi, "Child Custody Policies and Divorce Rates in the U.S.," 11th Annual Conference of the Children's Rights Council October 23-26, 1997. Washington, D.C. (1997) showed a significant correlation between joint physical custody awards and reduced divorce. They conjectured that a parent who expects to receive sole custody is more likely to file for divorce than one who may be awarded shared custody. Sole custody allows one parent to hurt the other by taking away the children, and usually involves higher child support transfers than shared physical custody. Sanford Braver discusses the implications of their findings in his new book Divorced Dads. (Quoted in Comments on Justice Canada Public Consultation Document titled "Putting Children’s Interests First: Custody, Access and Child Support in Canada," Eeva Sodhi (2001 04 27), Note i.a.))

    Margaret F. Brinig and F.H. Buckley, "Joint Custody: Bonding and Monitoring Theories," Indiana Law Journal 393 (1998). There is a correlation between joint physical custody awards and reduced divorce. Under bonding theories, a spouse who would expect to lose custody under a sole-custody regime has greater incentives to bond with his family under joint custody. With greater family bonding, the likelihood of a divorce declines. This would greatly benefit children, for whom a divorce is devastating. Under monitoring theories, joint custody usefully polices the agency costs of misbehavior by a spouse who has been granted sole custody. The noncustodial spouse has thus a greater incentive to support his child on a move to joint custody. Our principal result is that divorce levels are negatively and significantly correlated throughout with joint-custody laws. These results are consistent with the hypothesis that joint-custody laws reduce divorce levels. … A change to joint-custody laws is associated with a two- to eleven-percent reduction in divorce levels. This is a small but substantial gain; a larger one would have been suspicious." (Quoted in Comments on Justice Canada Public Consultation Document titled "Putting Children’s Interests First: Custody, Access and Child Support in Canada," Eeva Sodhi (2001 04 27), Note i. b.))

    See also the references provided in the footnotes to Child Support Chicanery, by Stephen Baskerville, and see These Boots are Made for Walking: Why Wives File for Divorce, by Margaret F. Brinig and Douglas W. Allen.  From that report:

    THE ROLE OF CHILD CUSTODY IN DIVORCE FILING

Table 7. How much do the numbers matter?
Case 1: Wife married at 19, husband at 26. They’ve been married 20 years, and have three kids. The husband gets custody. Husband has 7 years more education than the wife, and they live in a fault state. Wife is white. Probability that wife files = .095. However, if the wife got custody, the probability that she’d file increases to .69.
Case 2: They married when both were 26, and have been married 5 years. They have two children, and the wife will get custody. The husband finished college and the wife a law degree (three more years of education). They live in a no-fault state and wife is white. Probability that wife files =.79. However, if the husband got custody, the probability that the wife files would decrease to .32.
  1. See suicide stories (Men who broke), specifically, Andrew T. Renouf's Suicide Note and the case of Darrin White, in Prince George, British Columbia.

  2. The child-support-arrears collection industry — A comment on Senator Wellstone's speech March 05, 2001, during the discussion in the US Senate, re: S. 420, the Bankruptcy Reform Act.), by Walter H. Schneider

  3. Canadian child support guidelines — Analysis by Glenn Cheriton

See also:

White RoseThe White Rose
Thoughts are Free

__________________
Posted 2002 03 06
Updates:
2003 05 02 (added reference to Family Law — Table of Contents
2006 03 04 (added link to Feminism for Male College Students)
2006 03 20 (added update re: Judge Perkins his 2002 opinion concerning constitutionality of CS)