Why Georgia’s Child Support Guidelines Are Unconstitutional: Economic Exhibits


R. Mark Rogers

 Economic Consulting



Georgia’s child support guidelines originally began as guidelines intended to be used only in welfare situations in order to recover from fathers the welfare payments given to unwed mothers. These welfare guidelines were in use during the 1980s for welfare cases involving child support and handled by the Georgia Department of Human Resources. These guidelines—except for the range of percentages—were in general use for welfare cases by the Georgia Department of Human Resources as indicated in grant applications to the U.S. Department of Health and Human Services for child support incentive funds. In 1989, the Georgia Department of Human Resources asked that the welfare case child support guidelines be enacted for overall child support cases. But are Georgia’s child support guidelines rational, based on sound economic principles? Are the guidelines economically fair and appropriate or do they create extraordinary benefits and extraordinary burdens? In fact, as shown below, the guidelines are not economically rational and indeed do create extraordinary benefits and burdens. Does the lack of a rational, economic basis and the existence of extraordinary burdens and benefits form a factual basis for a constitutional challenge to these guidelines? First, what do Federal regulations require of states when establishing child support guidelines? Separate from the requirement that the obligor’s income be a factor in determining the award, there have been two basic economic requirements (many in terms of procedure) and one very specific numeric requirement related to equal protection. The Code of Federal Regulations (CFR) in 1988 required that the basic living needs of the obligor (non-custodial parent—or noncustodial parent) be taken into account and that the guidelines be economically appropriate. See 45 CFR 302.53 (1988) and 45 CFR 302.56. The intent of Georgia’s child support guidelines being found in federal regulations can be corroborated from additional sources. In “Evaluation of Child Support Guidelines,” U.S. Department of Health and Human Services, March 1996, in Chapter 1, page 3, the U.S. Department of Health and Human Services specifically states that regarding state guidelines, “their applications result in the determination of appropriate child support awards” and reviews must be based on “economic data.” This shows that guidelines must reflect child cost patterns shown in economic data in order to be appropriate. It follows that child support guidelines that follows no known child cost pattern cannot result in appropriate child support awards.1 1Federal case law indicates that the federal intent for child support guidelines supercedes any state intent. The U.S Court of Appeals—among other federal courts—has published opinion that when states engage in program agreements with the federal government, federal regulations supercede not just state rules and regulations but also related state statutes. A key opinion is Jackson v. Rapps, U.S. Court of Appeals for the Eight Circuit, October 17, 1991. 947 F.2d 332. This case specifically addressed child support program regulations. It follows that the federal regulation defines the intent of state child support guidelines because of the supremacy clause. There is a long list of case law to substantiate this. Recently, from the issues of the last presidential election regarding federal regulation of overseas ballots, the case of Robert Harris, et all, v. Florida Elections Canvassing Commission, et al., United States District Court for the Northern District of Florida, Tallahassee Division, Case No. 4:00cv459, December 9, 2000 was important. This case stated that federal regulations supercede state law and that a state regulation implemented to cure a defect in complying with federal regulation supercedes the state law in which that state regulation may conflict. R. Mark Rogers, “Why Georgia’s Child Support Guidelines Are Unconstitutional” © – 2 – Two basic questions for evaluating Georgia’s guidelines to determine if they meet the intended purpose is whether basic living needs of the non-custodial parent are part of the guidelines and whether the guidelines result in economically appropriate awards. Importantly, if the guidelines do not result in economically appropriate awards, then the guidelines are unconstitutional because they do not result in the intended purpose. This issue can be restated in terms of the question, “Are the guidelines rationally related to child costs as they are incurred by each parent while providing for the financial needs of the child?” Equal protection is an issue subsumed within the question of whether the guidelines are economically appropriate. Child costs are fungible between parents. The child has the same type of financial needs when in the care of either parent. There is no economic distinction between a child expenditure incurred by a custodial parent versus that incurred by a non-custodial parent— other than the amount incurred. The child is equally entitled to support when in the care of either parent and both parents have equal legal responsibility for supplying financial resources for meeting these costs. The equal protection issue, therefore, has two facets: the guidelines requiring each parent to contribute financial resources with equal responsibility commensurate with that parent’s financial resources and the guidelines requiring that the child costs of each parent receives equal consideration for support by the other parent. Nationwide, the federal Family Support Act of 1988 has led all states to adopt various types of generic child support guidelines which operate on various broad assumptions about obligor and obligee economic circumstances. These guidelines have never been explicitly scrutinized for meeting standards for constitutionally sound guidelines. However, prior to the adoption of these generic guidelines, some states did issue specific criteria for a constitutionally sound child support award process or guideline. The forensic economic evidence is contained in a PDF located here: https://westmichigandad.files.wordpress.com/2011/07/gaexhibits-rogers1.pdf

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