R. Mark Rogers
Economic Consulting
GuidelineEconomics.com
Introduction
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:
West Michigan DADS 