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Legal Critique of Minnesota Guidelines JOHN REMINGTON GRAHAM
Mr. Knute Gladen, President In re: Reform of the Minnesota Child Support Guidelines Dear Sir, 1. INTRODUCTION: Last June you and your board asked me to review the child support guidelines implemented by Section 518.551 of Minnesota Statutes 2000, with a view to suggesting possible avenues of reform. This report is made to you at your request in the understanding that it is not confidential, and will be used for public distribution. The injustices resulting from application of these guidelines are often acute and have become notorious. I have voiced concern about this problem over many years as a member of the Minnesota Bar both in public life and private practice, but the subject is formidable, requiring support from an organization like yours to sponsor and encourage adequate interdisciplinary cooperation. My background includes substantial work in the field of constitutional law, which is one important element, but we also needed the contributions of a qualified economist in order to make this effort effective and beneficial. A member of your board, Bob Carrillo, put me in touch with Mark Rogers, a veteran economist with over nineteen years of his professional career at the Federal Reserve Bank of Atlanta, and acknowledged expertise on questions of child support. I began my reinvestigation by consultation with Mr. Rogers over several weeks. I read with interest his excellent report to the Georgia Commission of Child Support, dated June 1, 2001, and entitled The "Costs Shares" Child Support Guideline: A Working, Superior Alternative to Current Guidelines. In studying Mr. Rogers' report to the Georgia Commission, I also considered referenced material, especially a monograph by Dr. Jacques van der Gaag at the University of Wisconsin. I also reviewed the learned debate over the Georgia child support guidelines, published in Vol. 6 of the Georgia Bar Journal, No. 2 (October 2000). Georgia has child support guidelines similar in principle to those used in Minnesota, and the problems underlying the guidelines used in each State, and the solutions, are the same in all essential respects. For this reason, Mr. Rogers' report to the Georgia Commission is essential reading for interested citizens and public officers of our State. I recommended that your board secure rights from Mr. Rogers for distribution of his report to the Georgia Commission, because it supplies clear insight in terms understandable to a conscientious reader, and helps demystify the economic mumbo jumbo which sometimes beclouds discussion of this problem. Gaining such an understanding is important, because many well-meaning individuals, including not a few legislators and judges in Minnesota, have over the years been misled about the guidelines now in use: they have been told that these guidelines are rooted in solid economic data and analysis. In fact, these guidelines have been literally made up from nothing or else contrived from abuse of otherwise legitimate information by pseudo-experts with agendas of social engineering not in the public interest and prohibited by fundamental law. I have spent considerable time in several major law libraries, which enabled me to draft initial advisory memoranda, dated July 15 and 26, 2001, on the origins, development, and use of Minnesota's child support guidelines, relevant judicial decisions, and other legal authorities. I recommended that R-KIDS of Minnesota commission Mr. Rogers to write up a comprehensive review of the guidelines now found in Section 515.551 of Minnesota Statutes 2000. This step was critical, because our legislature has thus far failed to undertake a really adequate study of these guidelines under the direction of a qualified economist in light of established constitutional principles. The private sector has done what the public sector should have undertaken long ago, before our guidelines were ever imposed in all child support cases. Thanks to R-KIDS of Minnesota, we have now have a second report by Mr. Rogers, dated October 22, 2001, and entitled Why Minnesota's Child Support Guidelines Are Unconstitutional: Economic Exhibits. This superb work describes in painful detail why the guidelines now used in Minnesota have no economic basis whatever, and inevitably produce crying injustices which, as informed individuals can attest, have needlessly wrecked countless lives and careers, driven literally thousands of our fellow citizens underground, destroyed vital parent-child relationships, and ultimately deprived children of needed support which, with a little humanity and good sense, could have been made available without bureaucratic excess at bloated costs. I happen to have been a county attorney, and, during my tenure in office, I supervised an expanded program of child support collections. In only two years we increased actions filed by 107%, and vastly increased collections measured in dollars assessed and paid. We accomplished these objectives by assuring that child support bureaucrats were gently bridled, that the guidelines were not inflexibly applied, that individual circumstances were taken into account, that child support was not excessive, and that proper contact between obligors and their children was maintained. The result was that we had edifyingly few delinquencies while I was in office. That unforgettable experience confirmed what I had earlier suspected: the guidelines are very seldom appropriate, because they have no rational bearing upon pertinent facts, and the problem of "dead beat dads" — occasionally also the problem of "dead beat moms" — is almost always the result of government oppression and insensitivity. The problem is not failure or unwillingness of obligors to pay reasonable child support, but their inability or refusal to pay excessive child support while they are humiliated by unjust denial of access to their children. There is a natural tie between parent and child, and the secret for a successful program of child support collections is to work with, not against that natural tie. Due to the intervention of R-KIDS of Minnesota, for which I am personally grateful, it is now possible for legislators and judges in Minnesota to understand exactly what has gone wrong, and how to remedy the problem. 2. BASIC CONSTITUTIONAL PRINCIPLES: The equality of men and women in the eyes of the law is based on the 14th Amendment and other provisions which ordain that no person shall be denied equal protection of the laws, and by the 19th Amendment, which says that no person shall be denied the right of vote on account of sex. The strong presumption against the constitutionality of laws discriminating against men or women on account of sex turns in significant degree upon the proposition that the right to vote includes and preserves other more basic privileges and immunities. See, e. g., Adkins v. Childrens' Hospital, 261 U. S. 525 at 552-553 (1923), and Frontiero v. Richardson, 411 U. S. 677 at 685 (1973). From these cases has grown a large and impressive body of case law which continues to expand. See especially the far-reaching decisions in Mississippi University for Women v. Hogan, 458 U. S. 718 (1982), and United States v. Virginia, 518 U. S. 515 (1996). The most strategic case for our purposes here is Orr v. Orr, 440 U. S. 268 (1979), which struck down as unconstitutional on its face a statute allowing alimony for women but not for men. The case is important, because it makes clear that the United States Supreme Court will not tolerate discrimination against men or women in family courts and family law. A growing number of strong women have acknowledged that family courts in Minnesota are not living according to this principle of fundamental law, but are systematically prejudiced against men, while systematically pampering women. One brutally frank example of this viewpoint is found in a pamphlet circulated recently at legislative hearings in St. Paul by Barbara Wagner, now Barbara Starr. She says what most men dare not say but is, I am afraid, rather too true: “Judges view women as weak, immature, emotional creatures who can't be expected to manage anger like responsible adults or be held to the same high standards men are held to in legal matters. They are rarely prosecuted or required to pay restitution for their misconduct in domestic related legal proceedings. Judges often reward them for it instead.” Barbara is absolutely right. If our family courts treat males as if they were boys, they will act like boys; but, if our family courts treat them as men, they will act like men. It is no less true that, if our family courts treat females as if they were girls, they will act like girls; but, if our family courts treat them as women, they will act like women. It is a law of nature. Over the past thirty to forty years, women have assumed a public position in American society as never before. And as this development has unfolded, it is fair to say that women most honestly desiring equality have demonstrated their solid worth by personal example. These women have often been the first to condemn unjust discrimination against men. University women with doctorates, for example, were the first to explode the hoax that men alone are the culprits in domestic violence, and to expose the violence of women against their intimate partners. See, e. g., Suzanne Steinmetz, The Battered Husband Syndrome, 2 Victimology, 499 (1977), and Jacquelyn White et al., Deconstructing the Myth of the Nonaggressive Woman, 18 Psychology of Women Quarterly 487 (1994). The same trend can be observed in the field of child support, which, like domestic violence, has been an issue hijacked to exploit men. Part of the reason for delayed scrutiny of our child support guidelines, now long overdue, is the rank sexism against men pervasive in all branches of state government in Minnesota, producing results obviously unconstitutional under contemporary standards of the United States Supreme Court. It has been easier to brand men burdened with excessive child support as irresponsible than to ask whether our system of establishing the amount of child support is reasonable and just. An adjustment in this inappropriate attitude, conformable to the highest law of the land, must be a healthy first step in the direction of meaningful reform. We began to anticipate the need for change in the direction of authentic constitutional standards in Chapter 1030 of Minnesota Laws of 1969 and Chapter 330 of Minnesota Laws of 1974: -- these acts abolished the presumption that, in cases of divorce, the custody to children of tender years should be awarded to their mother. And this maternal presumption was expressly declared unconstitutional in State ex rel. Watts v. Watts, 350 N. Y. S. 2d 285 (N. Y. City Fam. Ct. 1973), and Commonwealth ex rel. Spriggs v. Carlson, 368 Atl. 2d 635 (Pa. 1977). I should also note a large and powerful body of jurisprudence which acknowledges inherent rights of parents and families, constitutionally protected against undue governmental intrusion. These cases include such classics as Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Wisconsin v. Yoder, 406 U. S. 205 (1972). From these constitutional principles, it follows clearly enough, that, upon dissolution of marriage as during marriage, father and mother both have an equal duty to provide for the basic needs of their offspring on an ability-to-pay basis. Generally speaking, the basic needs of a child must be supplied by the father in proportion to his resources globally considered, and the mother in proportion to her resources globally considered. Very often but not always the father will have greater resources, and will, therefore, have a greater contribution to make in dollars paid out, yet the mother will have an equal duty to contribute in proportion to the size or her earnings and largesse. Procreation is a joint act and a joint responsibility. Basic needs in this sense may include reasonable comforts and opportunities fairly within reach of the child's environment, but they do not include extravagances or luxuries, for the State has no prerogative to dictate in such matters. The State has some power to define basic needs within reasonable limits. But once basic needs are met, the legitimate governmental interest of the State ceases, and it is up to the parents alone to decide what, if anything additional is to be supplied according to their best judgment. The equal obligation of both parents to supply the basic needs of their offspring on an ability-to-pay basis is the constitutional standard of child support, as was first acknowledged Conway v. Dana, 318 Atl. 2d 324 (Pa. 1974), and further defined in Melzer v. Witsberger, 480 Atl. 2d 991 (Pa. 1984), which relied heavily on Smith v. Smith, 626 Pac. 2d 342 (Ore. 1981). In Smith, this standard was ascertained in terms of natural justice and right reason, to which constitutional principle should in any event conform. 3. LEGISLATIVE ORIGINS OF MINNESOTA'S CHILD SUPPORT GUIDELINES: If you look at Sections 518.17 and 518.551 of Minnesota Statutes 1982, you will see sound provisions for child custody and child support which can easily be reconciled and interpreted in keeping with the constitutional principles and legal authorities just cited and discussed. In Section 518.17, Subd. 3, of Minnesota Statutes 1982, the equal standing of both father and mother in determination of custody was affirmed. And in Section 518.l7, Subd. 4, of Minnesota Statutes 1982, child support was defined essentially in terms of the resources and needs of the parents and the child. In Section 518.551 of Minnesota Statutes 1982, provision was made for child support in cases where public authority intervened to support dependent children in welfare cases, requiring generally that an obligor, nearly always an absent parent, be ordered to pay child support by reimbursing public authority for public assistance paid out to support his dependent children. It was and remains, in effect, a kind of tax judicially assessed with legislative approval, and imposed in a limited category of cases pending before our family courts, although in 1982 there no guidelines in the numerical and tabular form such as we have today. Our child support guidelines, in the numerical and tabular form now used, were introduced by Chapter 308 of Minnesota Laws of 1983. Section 17 of Chapter 308 amended Section 518.551 of Minnesota Statutes 1982 by adding to the fifth subdivision a set of guidelines in numerical and tabular form expressly for reimbursement of public authority in public assistance cases, in terms of the number of children and the obligor's net income, unless particular circumstances in a given case called for deviation. These guidelines were developed by Dr. Jacques van der Gaag at the University of Wisconsin in a monograph cited and described by Mark Rogers on page 4 of his report to the Georgia Commission. Dr. van der Gaag's guidelines rest upon certain assumptions, among others, (1) that the household is a low-income unit, where the combined income of both parents averaged around $12,000 in 1982 dollars (equivalent to $21,426 in 2000 dollars) annually; (2) that the mother was the custodial parent at home, and earned little or no income outside the home; (3) that the father was the sole income earner, and was entitled to the tax benefits for supporting the child under the 1982 (since radically changed so as to make such benefits available only to the custodial parent, at least absent judicial intervention by the family court); (4) that the father paid little or no income tax; (5) that the father was absent from the home; (6) that the children were with the mother 100% of the time; and (7) that the guidelines should be applied only after a reasonable reserve had been set aside as a basic living allowance for the obligor. It is obvious that these conditions existed, and with guidelines adjusted for inflation exist in only a very small percentage of all child support cases pending in our family courts: generally, they do not fit the vast majority of private divorces. On the other hand, Section 17 of Chapter 308, standing alone, was expressly limited to public assistance cases which Dr. van der Gaag's guidelines were designed to address, and, if Section 17 had been left to stand alone, no serious injustice would have resulted. Unfortunately, Section 17 was not allowed to stand alone. For by Section 15 of Chapter 308 of Minnesota Laws of 1983, a new subdivision was added to Section 518.17 of Minnesota Statutes 1982, applicable to all private divorces: "Subd. 5. The court shall not order the noncustodial parent to pay support in an amount below the appropriate amount determined from the guidelines in section 17 [Chapter 308 of Minnesota Laws of 1983, amending Section 518.551 of Minnesota Statutes 1982] for use in public assistance cases, unless the court makes express findings of fact as to the reason for the lower order." [Emphasis added] The earthshaking effect of Section 15 of Chapter 308 of Minnesota Laws of 1983 was that, notwithstanding the constitutional standard for child support in Section 518.17, Subd. 4, of Minnesota Statutes 1982, the courts were ordered to follow Dr. van der Gaag's guidelines in all private divorces not involving private assistance. The new subdivision added by Section 15 of Chapter 308 created a statutory presumption hard to rebut, even though Dr. van der Gaag's guidelines were not designed to deal with such situations. Section 15 is also interesting in that its language expressly admitted that the guidelines applied to all private divorces were designed to deal with public assistance cases. Public assistance cases were then known to be a special category unlike the generality of child support cases. The fault was glaringly obvious to anybody with sufficient background. Unfortunately, most lawyers and judges of that era did not understand the origin and nature of these guidelines. A learned protest against Section 15 of Chapter 308 of Minnesota Laws of 1983 was made by Thomas Wexler, at the time a distinguished practitioner in Minneapolis. Since his election in 1990, he has occupied a seat on the Minnesota District Court in Hennepin County. His excellent article is published as Child Support Guidelines: Constitutional and Logical Infirmities, 54 Hennepin Lawyer, No. 4, pp. 12-12, 26-28 (March-April, 1985). Judge Wexler noted the contradiction between the child support standard in Section 518.17, Subd. 4, of Minnesota Statutes 1984, which spoke of the needs of the child and the resources of both parents, and the public assistance guidelines in Section 518.17, Subd. 5, of Minnesota Statutes 1984. He warned of "the danger that the guidelines will be arbitrarily applied" as a result of the wording in Section 15 of Chapter 308 of Minnesota Laws of 1983. He also pointed out that, if the State required married parents to spend a certain part of their income on their children, it would be viewed as an unconstitutional invasion of family privacy acknowledged by the United States Supreme Court, and that same assessment applies as well to divorcing parents. He went on to say that the public interest is limited to assuring "that the child be provided with basic necessities," and that such interest is "properly an obligation of both parents consistent with their ability to pay." He condemned the guidelines as unrelated to this proposed standard of child support, acknowledged by the Oregon Supreme Court and the Pennsylvania Supreme Court, as generally "too simplistic," and as making inevitable "disparate results in the top income bracket." What Judge Wexler did not then know — and what few if any members of the legal profession understood — was that these guidelines were taken from the work of Dr. van der Gaag, and that Dr. van der Gaag had specifically designed them not to be applicable to the generality of child support cases. Neither did Judge Wexler know what we have learned only very recently. When Mr. Rogers began his review of our current child support guidelines in Minnesota, he naturally made due inquiry of the Minnesota Department of Human Services to determine what economic data and basis supported our guidelines. He received an answer from Christa Anders, legislative manager of the department, dated June 19, 2001. Her letter is reproduced on page 9 of Mr. Rogers' report of October 22, 2001. Ms. Anders stated, "Minnesota enacted guidelines in 1983 before the Federal Child Support Act [of 1988]. There are no known studies that accompanied the 1983 enactment." [Emphasis added] By admission of the Minnesota Department of Human Services, there never has been any economic basis whatever for the child support guidelines as applied to all private divorces by Section 15 of Chapter 308 of Minnesota Laws of 1983. The recommendation from the department that Dr. van der Gaag's guidelines should be extended to the generality cases was a groundless concoction, at the time known to have no proper basis. At a hearing before the Family Law Subcommittee of the Minnesota Senate on November 7, 2001, representatives of the Minnesota Department of Human Services claimed that public assistance guidelines were applied generally to all child support cases by Section 15 of Chapter 308 of Minnesota Laws of l983 in the belief that divorced wives were mainly stay-at-home mothers, and that divorced husbands were mainly bread winners in the market place. During the 1970s, I was chairman of the admissions committee of an accredited law school, and even then 40-50% of our incoming classes were women. By 1983, the major decisions of the United States Supreme Court on the equal rights of men and women had been handed down, and the trend was unmistakable. The place of women in public life was universally acknowledged, and the market place was full of women. Minnesota in the 1980s was not a mid-Victorian society. The phony mea culpas of pseudo-reformers of the present era should be brushed aside. Inappropriate guidelines were applied generally in 1983 with a conscious quasi-Marxist purpose of social engineering, i. e., to use child support as an emotionally charged false pretext for redistribution of wealth. Judge Wexler was a secular prophet. But for awhile at least, he was not a prophet crying in the wilderness, for his protest was acknowledged in Moylan v. Moylan, 384 N. W. 2d 859 (Minn. 1986). Chief Justice Douglas Amdahl construed the guidelines into relative insignificance rather than finding them unconstitutional. In other words, he held that the guidelines might be used as a starting point in ascertaining child support in a private divorce, but that, notwithstanding the wording in the new subdivision added by Section 15 of Chapter 308 of Minnesota Laws of 1983, a family court must always make findings to justify a proper amount in terms of the needs of the child and the resources of both parents. Chief Justice Amdahl appears to have taken the guidelines as if "like bats of the law flitting in the twilight but disappearing in the sunshine of actual facts." — Mockovick v. Kansas City, St. J., & C. B. R. Co., 94 S. W. 256 at 257 (Mo. 1906). Chief Justice Amdahl noted in particular that in-kind and non-cash contributions may be considered in determining child support. The trouble with the opinion of Chief Justice Amdahl is that he did not adequately explain why findings were required in any case, even though the legislature seems to have directed otherwise. He noted a evident contradiction between the rules of practice and the new provision extending the guidelines generally. But such a contradiction explains little, because the legislative power is ordinarily free to change the rules of civil procedure. The real problem appears in the concurring opinion of Justice Larry Yetka, who frankly stated that inflexible application of the guidelines to all private divorces would be unconstitutional as invading family privacy and as legislative interference with the judicial duty to find facts, that the application of the guidelines in the generality of cases could be saved only by interpretation reducing them to nominal significance as "vanishing" presumptions. Unfortunately, Justice Yetka's admonitions have been disregarded, and, since Moylan, the legislature has generally acted with indifference to constitutional principle, and the guidelines, which from the beginning never had any economic basis in relation to the generality of child support cases, have been shown almost worshipful deference. This unfortunate development is largely explained by a so-called "reform bill" which emerged as Chapter 406 of Minnesota Laws of 1986. This act had a few good features including a rebuttable presumption in favor of joint legal custody and a cap on the amount of net income per month to which the child support guidelines might apply. But there was a sleeper in Section 9 of Chapter 406 of Minnesota Laws of 1986, which read simply, "Minnesota Statutes 1984, second 518.17, subdivisions 4 and 5, are hereby repealed." In other words, the legislature abolished the express criterion that child support should be determined by reference to the needs of the child and the resources of both parents as required by constitutional principle. Section 4 of Chapter 406 then amended Section 518.551, Subd. 5, of Minnesota Statutes 1984 so as to require ascertainment of child support in all cases in keeping with the guidelines, unless certain defined circumstances suggested the need for deviation. One of those circumstances, however, was stricken by Section 4 which never should have been stricken at all, viz., "the basic living needs of the obligor." Thus taking the statute for what it literally says, if the guidelines establish in a particular case an amount of child support which would deprive the obligor of bare subsistence, nothing can be done about it. It is sadly true that many cases can be found in which exactly such injustice now prevails. "Woe unto you lawyers! For you load men with burdens heavy to bear, yet touch not those burdens with your own fingers!" — Luke 11:46 As great injustices result from the huge payments imposed upon higher income obligators. Such awards often result from initial use of guidelines which establish an already excessive award as a starting point, then finding pretexts to depart upward without considering that the starting point was already excessively high for higher-income obligators. In this way, the same needs may be supplied two or three times over. As parents become wealthier, the proportion of their income required to support their children decreases. This is so, because there is a marginal propensity to consume and spend. If a parent buys a pony for his child, and then his salary is doubled or tripled, the child will not automatically need two or three ponies. Since Chapter 406 of Minnesota Laws of 1986, the guidelines have been more irrelevant to constitutional standards, economic realities, and the assumptions which they were originally designed to express. Even so, the legislature has year by year demanded ever greater inflexibility in applying the guidelines, and the number of tragedies in individual cases has correspondingly multiplied. Section 518.551, Subd. 5, of Minnesota Statutes 2000 speaks of the guidelines as raising a rebuttable presumption, while limiting the factors which may be considered in overcoming the presumption. As a practical matter, more factors are available to enhance an award above the amount established by the guidelines, than to decrease it. Meanwhile, our courts have shown little inclination to interfere with mechanical application of the guidelines in private divorces, in part because the guidelines have assumed a kind of mystique, even though they are scandalously groundless and contrived. See, e. g., Rogers v. Rogers, 626 N. W. 2d 813 (Minn. 2001), which weakened the practical meaning of language in cases such as Hortis v. Hortin, 367 N. W. 2d 633 at 635 (Minn. App. 1985), and Tweeton v. Tweeton, 560 N. W. 2d 746 at 748 (Minn. App. 1997), to the effect that both parents have an equal duty to support their children. The present trend is to pay lip service to the notion that the duty is "equal," while indulging in two gross fictions: first, that the parent with primary custody needs no judicial supervision in supplying his or her share, which means that his or her share is disregarded altogether, and, secondly, that the guidelines take into consideration the fair share of the burden of both parents, which has never ever been even remotely true. 4. WHY THE GUIDELINES ARE UNCONSTITUTIONAL: Minnesota child support guidelines are now considered as statutory presumptions. They are "rebuttable" in theory, although the relevant provisions make it easier to "rebut" the presumption upward to a redundant award, than downward to deal with hardship or other injustice. There is a body of case law on the constitutionality of statutory presumptions, based mainly on the due process clause of the 14th Amendment. Probably the best summary available is in Leary v. United States, 395 U. S. 6 at 32-37 (1969). These questions most often arise in criminal law, but they appear also in civil litigation. In either situation, the fundamental rule is that it is unconstitutional to allow a statutory presumption to operate against a party over protest unless there is a rational relationship between the predicate facts and the conclusion directed. A good example of a legitimate presumption, arising as part of the common law in some States, or by rule of court or statute in others, is that a letter is presumed to have been received if it has been properly addressed and mailed. The presumption can be rebutted, as by showing that the airplane carrying the mail crashed, but otherwise it controls, and it is valid because there is a fair relationship between the fact of proper addressing and mailing and the conclusion of its receipt by the individual intended to receive it. The most pertinent authority for purposes of civil litigation is Western & A. R. R. v. Henderson, 279 U. S. 629 (1929), which is an old classic, and still good law. In Henderson, the United States Supreme Court held that a certain statutory presumption in civil litigation was unconstitutional, even though it was rebuttable. The court held that, where the statute required a finding of negligence by a railroad merely from the fact of a collision between the train and an automobile at a crossing, unless the railroad proved otherwise, the presumption was unconstitutional. The mere fact of an accident in such circumstances did not by itself prove or tend to prove negligence of the railroad, which is why the presumption was deemed to violate due process of law, nor was the rebuttable feature of the presumption enough to save it from condemnation. There are so-called “vanishing” presumptions which exist only as a tentative beginning of analysis and control only if no evidence of fact is offered, but they disappear from consideration from the very moment admissible evidence becomes a part of the record. In Moylan, Chief Justice Amdahl and Justice Yetka both held that the guidelines, as applied child support cases not involving public assistance, raise no more than a vanishing presumption. It is clear enough that this reading of the guidelines into relative insignificance was necessary in order to avoid the conclusion that Section 15 of Chapter 308 of Minnesota Laws of 1983 was unconstitutional and thus null and void as if never enacted. The fair inference is that, when the legislature ignored the admonitions of Chief Justice Amdahl and Justice Yetka in Sections 4 and 9 of Chapter 406 of Minnesota Laws of 1986, it ventured into forbidden waters. The child support guidelines in Section 518.551 of Minnesota Statutes 2000 are no longer vanishing presumptions, as the legislature has made clear, notwithstanding the admonitions in Moylan. The presumptions in questions are rebuttable, but almost impossible to resist in most cases. As appears from tracing their origins to the work of Dr. van der Gaag, and even by admission of the Minnesota Department of Human Services, there is no reasonable assurance at all that application of the guidelines to one parent will assure fulfillment of the equal duty of both parents to satisfy the basic needs of the child according to all available resources. The presumptions as they stand are irrational, therefore unconstitutional, and should be repealed. And, if they are not repealed, it will be proper to secure judicial condemnation in appropriate cases. 5. PENDING "REFORM" BILLS: At the hearing before the Family Law Subcommittee of the Minnesota Senate on November 7, 2001, it was conceded, for the first time I am aware of, that the current guidelines are inappropriate. It was amazing for me to hear these concessions after all these years during which the guidelines have been regarded as if they were gospel in the family courts of our States. There are two main reform bills now pending in the legislature, — House File No. 1446 (corresponding to Senate File No. 1960), and Senate File No. 1364. Both of these bills were discussed during the hearing on November 7, 2001. Those speaking in favor of these bills used the rhetoric of "shared responsibility" as opposed to "obligor only" guidelines. They spoke smoothly of guidelines which would "fit the family," etc. The glittering generalities articulated by those favoring these bills had a pleasing and plausible sound. But as the proof of the pudding is in the eating, the testimony became particularly interesting when the specific application of these bills was discussed. The "reform" in both cases was limited to lower-income obligors, and even there the relief was barely more than nominal. But it was clear enough that middle-and-upper-income obligors would pay more, not less. Concealed behind the technical wording of these bills and the sales pitches of the advocates of these bills remains the same old quasi-Marxist purpose of social engineering by and redistribution of wealth on the emotionally charged false pretext taking adequate care of our children. It is time that we should cease indulging in oppressive, unnecessary, and unconstitutional practices in the name of children. We should penetrate and explode such demagoguery for what it is. Our children are best off when the constitution is respected and justice is done. It would be preferable if the mistakes of the past were forthrightly acknowledged and forthrightly corrected. Neither of these bills was prepared with the assistance of a competent economist, and the result has been, as a practical matter, reform in name only, and they end up making things worse in many cases. In both bills, the projections are based on sociological assumptions which have nothing to do with the way people in Minnesota approach life, and economic data used are either flawed or, worse yet, misapplied in very much in the same way as Dr. van der Gaag's guidelines were misapplied in Section 15 of Chapter 308 of Minnesota Laws of 1983. More of the same with new labels will not fix this problem. 6. FIRST PROPOSAL FOR REFORM, — OUTRIGHT REPEAL: The legislature has several options in addressing the problem of reform. The simplest and a good remedy, in my opinion, would be to repeal every amendment from and after Chapter 308 of Minnesota Laws of 1983 so as to restore the law as it stood in Sections 518.17 and 518.551 of Minnesota Statutes 1982. The objection to this straightforward approach will be that such reform will cause the State of Minnesota to lose federal money, because then we shall no longer meet the conditions for receipt of grants by Congress as set forth in the Family Support Act of 1988 (Public Law No. 100-485, Section 103, 102 U. S. Statutes at Large 2342 at 2346-2348, codified as 42 United States Code, Sections 666-667). My primary answer is that we do not need the federal money, because a little humanity and good sense will cause the costs of child support collections to plummet and will actually improve performance of obligors. The federal money has served only to feed a bureaucracy which has done more harm than good. My secondary answer is that it is by no means clear, as was once thought, that Congress has unlimited discretion in imposing conditions on grants of federal money as a way of practically coercing the several States to enact legislation exercising powers reserved by the 10th Amendment. See, e. g., South Dakota v. Dole, 483 U. S. 203 (1987). And I am not at all sure that the conditions imposed by Congress in the Family Support Act of 1988 are constitutionally sustainable. I think that Minnesota should consider legislative resolutions and court litigation to address unconstitutional conditions written into grants of federal money by Congress to the several States. 7. SECOND PROPOSAL, -- LEGISLATION EXPANDING AVAILABILITY OF THE HORTIS/VALENTO FORMULA: In Hortis v. Hortis, 367 N. W. 2d 633 (Minn. App. 1985), it was held that both parents are equally obligated to support their children; that child support should not be used to equalize the income of the parties, that disparity of income may be related only to the needs of the children, and that, while no judicial supervision of the obligee is presumed necessary whenever exclusive physical custody is granted and only the noncustodial parent should be ordered to pay, the situation is different where the parties have joint physical custody, each having the child six months of the year. In such a situation the father should pay his guidelines amount while the mother has physical custody, while the mother should pay her guidelines amount while the father has physical custody. In Valento v. Valento, 385 N. W. 2d 860 (Minn. 1986), it was held that both parents have an equal obligation to support their child, and that, where joint physical custody is awarded with the stipulation that the father will have the child 12 days out of every 28, and the mother will have the child 16 days out of every 28, and the father's income is relatively larger than the mother's income, child support of the father per month year round will equal 16/28 of his guidelines amount in relation to his income per month less 12/28 of the mother's guidelines amount in relation to her income per month. In Tweeton v. Tweeton, 560 N. W. 2d 746 (Minn. App. 1997), it was affirmed that each parent has an equal obligation to support their child, and that, where joint physical custody is awarded to one parent, but parenting responsibilities are equally or significantly shared between the father and the mother, the Hortis/Valento formula should be applied, the same as if joint physical custody had been granted. Tweeton stands for the proposition that application of the Hortis/Valento formula turns on the reality of substantial sharing of parenting responsibilities, not the label of joint physical responsibility. Tweeton rests upon the maxim that equity looks to the substance of things and disregards the form. Hortis, Valento, and Tweeton represent a practical recognition that something is wrong with our current child support guidelines, among other things because they fail to acknowledge the shared rights and duties of both parents. These cases attempted to make more rational use of these guidelines, and, even though the guidelines themselves are unsuited to the great majority of cases, more equitable results were observed. It did not take the legislature long, however, to react by attempting to undo these modest judicial steps in the direction of reform. In Rogers v. Rogers, 622 N. W. 2d 813 (Minn. 2001), it was held that, by operation of Section 4 in Article 1 of Chapter 382, Minnesota Laws of 1998, where one parent is granted physical custody, but the noncustodial parent significantly shares parenting responsibilities (nominally 45% in the case before the court), the noncustodial parent must still pay the full guidelines amount in relation to his income without any benefit from the Hortis/Valento formula. On the other hand, it is evidently still possible to mollify unjust effects of the guidelines by a decree which grants joint physical custody in name only. In Blonigan v. Blonigan, 621 N. W. 2d 276 (Minn. App. 2001), the Hortis/Valento formula was applied and sustained where, on stipulation of the parties, joint physical custody was granted in form, yet actual time was divided between the mother for eleven months of the year save for weekends, and the father during the weekends during the eleven months plus one full month each summer. This arrangement actually resembled physical custody in the mother with liberal visitation in the father, which ordinarily would have excluded use of the Hortis/Valento formula. Yet by actually describing the arrangement as joint physical custody in the degree, the formula with its beneficial effects became available, in that case reducing child support paid by the father to the mother under the circumstances by about a third, since he actually had the child for about 117 days of the year. The stock argument against the Hortis/Valento formula is that a parent will not stipulate joint physical custody or shared responsibility in child care if, as a consequence, he or she will receive less child support. Instead, so the argument goes, the parent will insist on sole physical custody, and there will be a bitter custody fight. But this practical reality shows that, because our child support guidelines are unfounded in economic facts and unrelated to natural justice, they grant a windfall to the custodial parent, and devastate the noncustodial parent, which in turn promotes a bitter custody fight. The Hortis/Valento formula helps alleviate the injustice, but only if there is joint physical custody. One way to prevent bitter custody fights is to create by statute a rebuttable presumption in favor of joint physical and legal custody. The idea should be implemented anyway in light of the recent decision of the United States Supreme Court in Troxel v. Granville, 147 L. Ed. 2d 49 (U. S. 2000). Justice Sandra Day O'Connor gave intensive focus to the decisions which describe the inherent rights of natural parents against governmental intrusion as a constitutional principle (147 L. Ed. 2d at 56-57, 58), including a presumption arising from fundamental law that a natural parent acts in the best interests of his or her child (147 L. Ed. 2d at 59). When we add to this presumption in favor of a natural parent the demand of fundamental law that father and mother be treated equally in a family court (Orr v. Orr, 440 U. S.), it follows inexorably, as a constitutional necessity, that there be an acknowledged presumption, not easy to rebut, favoring joint physical and legal custody as between a natural father and a natural mother. Even where there are moderate difficulties between the parents, joint physical and legal custody can be granted subject to the stipulation of the parties or the court that, unless the parties otherwise agree, or in any event, certain defined rules shall apply. Once these rules are in place, the Hortis/Valento formula can be applied even in a Blonigan type of situation. A statutory presumption in favor of joint physical and legal custody would serve public policy, because it would help sustain parent-child relationships and tend to eliminate or reduce bitter custody fights. It would, as noted, accommodate constitutional principle. And, even if no further reform of the guidelines were enacted, it would at least increase availability of the Hortis/Valento formula. That in itself would be an important reform of the law on child support, and moderate the excessive harshness of the guidelines we now have. I hope to see, as one important reform in any event, a rebuttable presumption in favor of joint physical and legal custody, and the adoption of a policy encouraging contact between parents and children. I can think of nothing which would do more to assure payment of child support as and when due. 8. THIRD PROPOSAL, — NEW STATUTORY GUIDELINES: While I would prefer to see Minnesota refuse federal money, because I think it is unnecessary and actually harmful, I can understand why the legislature may wish to qualify under the Family Support Act of 1988. The Hortis/Valento formula is really a temporary remedy which usually works pretty well, but more by accident than a solid rationale for the guidelines. It is, after all, possible to develop rational child support guidelines which are consistent with constitutional principle and laid upon a realistic economic foundation. Such guidelines would consider the needs of the children, the resources of the parents, marginal propensity to consume and spend, the division of parenting time, the tax benefits enjoyed, etc. Such a reform can actually do what it promises. The nature of such reform has been explained and illustrated by Mark Rogers on pages 15-27 of his report to the Georgia Commission. As made clear from the materials distributed at the hearing before the Family Law Subcommittee of the Minnesota Senate on November 7, 2001, the Department of Human Services has devised a "shared responsibility" model in which the amount to be paid is founded on sociological notions, as if child support were like the progressive income tax instead of a problem of paying the actual costs of raising and educating a child. It perpetuates the practice of creating a windfall for the "winner" of a custody fight. It creates a "responsibility" so large in theory that a higher-income obligor's "share" to be paid actually satisfies the whole cost of the child paid out and then something substantial beyond it. It has not been prepared by a professional economist. Save for giving modest relief to poorer obligators for whom current obligations are impossible anyway, it imposes greater burdens and makes things worse in the name of "reform" which the people of Minnesota do not need. By contrast, Mark Rogers has developed a "cost shares" model in which the amount to be paid by an obligator depends on the cost of raising and educating the child, as reasonably estimated from available economic data properly used. It takes into consideration actual economic realities, not pie-in-the-sky ideas of Utopian planners, and, because it is grounded in facts, not fiction, it will work. R-KIDS of Minnesota has invested funds to commission an authentic economic analysis of the child support guidelines prescribed by Section 518.551 of Minnesota Statutes 2000, showing that they are hopelessly inadequate. Mr. Rogers' report of October 22, 2001, will not be met with an authentic economic refutation, because it rests on solid ground. For a fraction of the cost already spent by the Department of Human Services to produce an illusion of reform, the State of Minnesota could engage Mr. Rogers to develop guidelines which could replace those now in use with honest and effective reform. The practical means are available. The question is now one of political will to accomplish the task before us. Thanking you, I am
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