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Child Support Guidelines Need Improvement

Men's International News and Review
March 28, 2002

Why Do Current Child Support Guidelines Need Improvement?
by Roger F. Gay

When asked for a formal, public explanation for why we need presumptive
child support guidelines, supporters give few reasons. Typically, they say
that presumptively correct guidelines lead to uniformity, simplify the
decision process, and provide greater certainty as to the outcome. They
also speculate that certainty will lead to less litigation because there is
less reason for it.

(This last bit of speculation never came true and higher courts remain
under pressure from an unusually high number of appeals year after year.)

In less public situations, the discussion is much different. A judge
sitting on a state panel on gender bias in Virginia put a word in a male
activist's ear; that presumptive guidelines produce unreasonably high
"child support" awards in order to equal out the difference in income
between men and women. Many "women's rights" activists view child support
as inseparable from spousal support or alimony and therefore argue that
there is no reasonable limit to the amount of a child support award.

Even academic studies provide a different view of what the new reformed
vision of child support is about. One study that became part of the
foundation of the political reform movement was written up by Elaine
Sorensen at The Urban Institute. Her federally funded study twisted
through a series of statistical speculations to conclude that after paying
the current level of child support, some fathers still had some money left
over. This news sent advocates off to pressure the federal government to
get more of it.

The political discussion that led to sweeping federal reform never really
had a responsible flavor. The phrase deadbeat dads was used to justify
anything. In the beginning, proponents claimed that reforms would bring
down welfare spending. It was clear to reasonable analysts from the
beginning that they wouldn't. When tied down to reasonable questions from
opponents, advocates within government could only say that reason didn't
matter. They were going to do it anyway. You know -- deadbeat dads.
After more than a decade in practice, the failure of the reforms to reduce
welfare costs keep all but the least well informed in check.

Perhaps the least likely reason to be discussed in legislative debate and
by child support commissions is given in federal statute. Federal law
requires the use of child support guidelines in all child support
decisions. It also requires that the use of a guideline results in an
appropriate award in each and every case. The least likely issue to be
discussed is whether the use of a state's guideline actually results in
appropriate awards in each case. Somewhere in the process of
implementation, this central federal requirement has been forgotten.

Most states use the Income Shares model for child support guidelines
designed by child support collection entrepreneur Robert G. Williams of
Policy Studies, Inc.(PSI) Williams' collections company receives a percent
of collections, presenting a conflict of interest. Advocacy groups
representing payers have been concerned as well about the conflict of
interest of the states themselves. Additional federal funding to states is
provided in proportion to the amount of child support paid in a state. The
majority of those who are involved in developing states' child support
guidelines today have direct financial incentives for arbitrarily
increasing award amounts.

The PSI model gained popularity in the states when it was published by the
Department of Health and Human Services, Office of Child Support
Enforcement as "technical assistance" to the states in developing their
federally mandated guidelines. No competition was held by the legal
community to determine the best model. The PSI model was adopted even
though it did not correspond to established legal principles, was not
developed by experts in making awards, and has never, in any way, been

(Some proponents claim that there is no limit to the amount that can be
awarded as child support, thus validation is not an issue to them.)

The Income Shares model, in basic form, includes a numeric table that
presumptively represents the correct monetary obligation of parents to
their children. The name Income Shares comes from the fact that the
obligation is divided between the parents in proportion to their income.
The PSI Income Shares model uses arbitrarily derived numeric table values
that are said to represent the amount parents in intact families (at a
similar income level) spend on their children. Thus, the resulting award
is said to obligate the paying parent - but not the recipient - to pay the
same amount to support his children, as he would have if the parents had
remained married.

Post divorce circumstances are not the same as those of the marriage. Even
if the numbers were correct, this would obligate one parent to pay the
other an amount that is unrelated to what is spent on his children. The
two parents are therefore "obligated" under entirely different standards.
So much for uniformity!

A smaller but significant number of states use the percent-of-income
formula. The percent-of-income formula takes a fixed percent of the
payer's income, which can depend on the number of children involved, as
the basic obligation. This formula was first used in socialist or
communist countries with strong income controls and with individual
economic life heavily integrated with the state. The simple uniform method
of calculating the child support transfer payment corresponded to the
simple uniformity of economic life of people in those societies, at least
as imagined by state planners.

The United States does not of course have such a planned economy.
Individual economic circumstances vary widely. The percent-of-income
formula does not correspond to the political and economic environment of
the United States. The results it gives are entirely random in relation to
children's needs and the relative ability of their two parents to meet
those needs.

(For more information related to these child support models, see
The Child Support Guideline Problem, a PICSLT paper.)
[ ]

An even smaller number of states use other models. The most popular in
that group is the Delaware model. The Delaware model was originally
developed to correspond to the rational principles for making a child
support award established in Delaware (and similarly in other states). But
the Delaware guideline today is different than originally conceived. It too
has been effected by the PSI model. Awards are much higher now because
Delaware increased the portion of awards referred to as the standard of
living adjustment, in order to bring them closer to those calculated by
the PSI model.

Traditionally, and as many people think of as constitutionally required,
child support awards were fashioned in relation to the relevant details of
the circumstances of parents and children. A typical child support
statute, prior to the federal reforms, provided the rational basis for a
child support award, not a simple formula giving the presumptively correct
amount of an award. One aspect of the constitutional question relates to
the use of evidence in showing what the family circumstances are.

In effect, child support guidelines replace actual evidence of family
circumstances with the fake evidence provided by the guidelines. For
example, the arbitrary values in numeric tables replace actual evidence on
how much is spent on children. The numeric values are not the whole story
on suppression and distortion of relevant evidence. The simple formulae
themselves act to reduce the scope of evidence regarded as relevant to
only those factors included in the simple formulae. The logic of overly
simple formulae forces an irrational interpretation on the judicial process.

To solve the problem completely, the PICSLT proposal is not simply to
adopt equations and tables recommended by another group of modelers.
There is a fundamental right to question whether any model gives the
correct result in each and every case. For the sake of making final judgments
in individual cases, child support statutes need to state explicitly what the
rational basis of a child support award is. In each case it must be possible
to compare the presumptive outcome with the rational basis for an award
in view of all evidence presented.

Federal law also requires that states review their guidelines at least
once every four years to assure that their use results in a just and
appropriate award in every case. So far as PICSLT has been able to
determine, no state has ever successfully carried out such a review.
Most states simply repeat the same sort of political process that led to
the use of the PSI derivative guidelines in the first place. In some
"reviews," states have invited PSI president Robert Williams to say that
he still thinks his model is ok.

That's a far cry from carrying out a valid technical review to assure that
use of a guideline will result in a just and appropriate award in every
case. One of the primary elements lacking in the process is the same
element that is lacking in the individual case decision process. States
typically have eliminated the rational basis for the award of child
support from their statutes. Review commissions are then called upon to
determine whether awards calculated by use of their guidelines are just
and appropriate without having any basis for determining what "just" or
"appropriate" means.

After many mathematical studies it became apparent that traditional wisdom
has great validity. Rather than reviewing the PICSLT proposal in detail in
this article, interested readers are welcome to discuss the question in
the Fathering Magazine discussion forum and the PICSLT discussion forum.
The assertion is that the following three principles provide a necessary
and sufficient basis for just and appropriate awards. Moreover, the
rational basis for child support award decisions must be stated in statute
in order to meet federal statutory and constitutional requirements.

* Child support is for the care and maintenance of children.
* Both parents have an equal duty to support their children.
* All relevant circumstantial information may affect the amount of the award.

Roger F. Gay

Roger F. Gay is leader of the Project for the Improvement of Child Support
Litigation Technology.  [PICSLT]

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