Georgia Bar Journal
October 2000 - Vol. 6 No. 2

Cover Story

Why 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 appropriate awards.

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 Georgia.

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.

Example 1

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.

Example 2

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 patterns.

(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 costs.

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 awards.

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 children.

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 having 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 scheme 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 States.

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 supporting 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 federal constitutions.

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.’"55

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 unreasonable 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.

Conclusion

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 litigation 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.


Endnotes

  1. 42 U.S.C. §§ 651, 669b (1994 & Supp. II 1996); 45 C.F.R. §§ 302.55, 302.56 (1999).

  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 Cir. 1997).

  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 1981).

  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. Ga. 1989).

  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 (1999).

  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 (Alaska 1992).

  54. County of Orange v. Ivansco, 67 Cal. App. 4th 328, 78 Cal. Rptr. 886 (1998).

  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.