Georgia Bar Journal
October 2000 - Vol. 6 No. 2
By Rebecca A. Hoelting
This article will demonstrate that Georgia’s child support guidelines are the product of a constitutional process and produce results that are not only constitutional, but generally fair to both custodial and noncustodial parents. Many competing interests and approaches must be balanced in devising a system of awarding child support. The choices reflected in the Georgia child support guidelines violate neither the due process clause nor the equal protection clause of the Constitution.
Before undertaking a constitutional analysis of Georgia’s child support guidelines, it is important to consider the underlying purpose of child support. The focus must be on the children, not the parents. Child support has been dissected and reinvented so often that this focus is often obscured. The true meaning of child support should be to try to find a way to best allocate the available resources to nurture, educate, and raise children when they are not in a two-parent family. The overwhelming import of child support led the Federal government to become involved in making sure that states set up guidelines to determine the appropriate allocation of parental resources.1 The federal rules were specific about how to establish the guidelines and provided a helping hand to states in the form of economic studies and descriptions of various models of guidelines.2
History Of Georgia’s Guidelines
Georgia’s guidelines were initially adopted for use by "IV-D" welfare agencies only. Prior to their adoption, a Georgia commission considered the most appropriate method of setting guidelines. Among other things, the commission reviewed the Office of Child Support Enforcement’s recommendations on establishing child support guidelines. The commission eventually decided to follow the Wisconsin model, which assigned child support as a percentage of the obligor’s income. Choice of this model was based upon careful consideration of economic data and ease of administration.
Before the guidelines were passed into law for use in all cases, a broader commission was convened. That commission included custodial parents, non-custodial parents, lawyers, judges, child support administrators and others. It considered the critiques of the Wisconsin model, such as its failure to expressly take the income of the custodial parent and other circumstances into account. As a result of these critiques, the commission incorporated a list of factors to be considered for deviations from the guidelines.3 These eighteen factors remain part of the statute.4 Although I can offer no statistical evidence, as a domestic relations attorney, I can attest that these factors often play an important role in negotiating a child support agreement or a child support award decided by a judge or jury.5
The Georgia child support guidelines are based upon sound economic principles. Calculation of child support using gross income makes sense because net incomes can be almost impossible to calculate using pay stubs and other readily available documentation. Decisions must be made about which of the deductions from a paycheck are mandatory and which are voluntary deductions. The gross income method should produce more, rather than less, consistent results. It is important to remember that intact and divided families cannot be compared because the fact that a family is divided will necessarily change the nature of and increase the cost of maintaining the family. There is widespread disagreement about the most appropriate method to determine childcare costs.6 There are many different ways of measuring such costs and subsequently many ways to interpret the numbers that are obtained. Some experts have stated that child-rearing cost data is not necessarily the best yardstick for determining the appropriateness of child support. Dr. Roger Williams, of Policy Studies, Inc., while testifying before the 1998 Georgia Child Support Commission, stated:
I think one of the reasons that child support is always controversial is that by definition the child is in the custodial parent’s house. And by definition, a lot of the expenditures are pooled between the custodial parent and the child, so basically to the extent the child support exceeds our best estimates of child-rearing costs, it doesn’t necessarily mean it’s not going to the child.7
In other words, the majority of the expenses for the children are incurred in the custodial parent’s home. The Office of Child Support Enforcement report points out that the overall standard of living for all family members declines when a family separates, since two families have more expenditures than one.8
Concerns about the inadequate resources left to the non-custodial parent for supporting the children during her or his visitation are misguided. In reality it is custodial parents who are more likely to suffer economic hardships. The Georgia Supreme Court in the Blanchard9 case held that a court could not award the non-custodial parent the federal income tax dependency deduction. In so holding, the Court wrote: "Each day more custodial parents fall below the poverty level, crowding welfare rolls, and needy children face serious shortages in government programs because of massive cuts in federal, state, and local budgets."10 In that context the Court decided that it could not allow judges to assign an income tax deduction to the detriment of the already financially disadvantaged custodial parent.
The Georgia guidelines also take into account the income of the custodial parent. Although the guidelines do not mathematically factor in that income, it was a consideration in the manner that the guidelines were set up. With regard to the model adopted by Georgia, the federal guidelines stated: "[It] does not ignore custodial parent income. Rather based on an alternate interpretation of economic evidence, it counts custodial parents’ income implicitly under the presumption that the custodial parent allocates the same percentage to the children as the non-custodial parent."11 Also, the Georgia guidelines list as a special circumstances the situation in which the obligor has gross income in excess of $75,000 per year.12 This is an important aspect of the guidelines and must be considered by parties, attorneys, judges, and juries.
It is also important to note that the Georgia Child Support guidelines produce results similar to the guidelines in other states. A recent comprehensive state-by-state comparison of child support awards in three hypothetical cases places Georgia well within the high and low extremes and in line with the majority of states. For example, for a medium-income family (gross income of $46,000 a year) where the noncustodial parent is the primary, but not sole, wage earner, Georgia’s presumptive child support award of $815 per month is well below the high of Nebraska’s $1,054 and well above the low of Mississippi’s $550. Our neighboring states of Alabama, Florida, North Carolina and South Carolina would award, on the same facts, $808, $876, $864, and $799, respectively. 13
Constitutional Due Process Review Of The Georgia Child Support Guidelines
Due process analysis requires two separate inquiries. First, does the state have a valid interest or objective to justify the legislation? Second, is the legislation rationally related to the objective? Due process rights are violated if the legislation is "utterly lacking in rational justification."14 Clearly the state has a valid objective in providing a method to ensure that child support awards are consistent and appropriate. Other states have made judicial inquiries into whether similarly drafted guidelines are rationally related to the objective of ensuring appropriate child support awards and have held that the guidelines in those states are rationally related and do not violate due process rights.15
In Boris v. Blaisdell, 16 the Illinois Appellate Court considered the constitutionality of the Illinois child support guidelines that set child support based upon a percentage of the non-custodial parent’s net income. The Illinois court found that the statute was constitutional and specifically rejected the due process arguments. The noncustodial parent had argued that the guidelines violated his fundamental right not to support his children beyond the necessaries, regardless of his financial ability. The court held that there was no authority for that argument. The non-custodial parent had also argued that the child support guidelines violated due process by infringing on that parent’s right to remarry. In rejecting the argument, the court wrote: "This argument, if accepted, would impede the traditional authority of both the state legislature and the state courts to regulate the determination and enforcement of child support orders beyond basic necessities."17
The Ninth Circuit Court in P.O.P.S. v. Gardner18 held that Washington’s child support guidelines were constitutional. The court noted that "the appropriate level of child support is a debatable issue dependent on policy and value judgments. On issues of social policy, the state has the power to make such judgments as long as they are not made arbitrarily. The table was developed based on economic studies and hard data. The presumptive support levels are not arbitrary."19 Similarly, the commission that adopted Georgia’s Child Support guidelines did so after careful study. Although the commission did not conduct its own economic studies, it did examine economic data and performed a careful analysis of the guidelines.20 The Georgia Court of Appeals has noted that the guidelines were in fact adopted "in response to the risk of losing substantial federal funding,"21 and were part of an ongoing reform of family law.
The facts in Immediato v. Rye Neck School District22 are analogous to the Georgia Child Support guidelines. In that case a high school student and his parents alleged that the school district’s mandatory community service program violated their constitutional rights. The court disagreed, noting that the state clearly has a legitimate interest in teaching children the importance of community service. Similarly, the state has a legitimate interest in assuring that child support awards are consistent and appropriate.
The court further reasoned that the program set up by the school district was specifically tailored to achieve the objective by allowing the children to recognize the needs of the community and how they could serve them and by asking the children to engage later in a discussion regarding those needs.23 Georgia likewise achieved its objective by convening a commission to determine the most appropriate manner in which to achieve consistent awards. The commission recommended the use of the Wisconsin model, presumably because of the ease of application and the predictability of result. Barring special circumstances, litigants in a divorce or child support case easily can predict the range of child support they will be obligated to pay or can expect to receive. Although the statute does not specifically state that the guidelines were chosen for predictability and ease of use, it is apparent that they were chosen for that purpose. "A legislative body need not explicitly state its reasons for passing legislation so long as a court can divine some rational purpose."24
Equal Protection Clause Review Of The Georgia Child Support Guidelines
Arguments that the child support guidelines violate the equal protection clause of the Fourteenth Amendment of the United States Constitution have not been upheld, even when subjected to strict scrutiny. Analyzing the Washington guidelines, the Court in the P.O.P.S. case held that the state had a rational basis for the guidelines. That court held:
"In the area of economics and social welfare, a state does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality.’"25
Nor is it valid to argue that the guidelines are discriminatory as applied, based upon the fact that men are disproportionately effected by the statute. Standing alone, that argument would not establish a per se constitutional violation. The finding that the guidelines are discriminatory as applied would dictate merely that the guidelines are subject to intermediate scrutiny under the equal protection clause.26 Analysis of a statute under intermediate scrutiny entails examining whether the statute furthers an important government objective and whether it is substantially related to furthering the objective. The child support guidelines further an important government objective of appropriate support for children and the guidelines are substantially related to the objective of ensuring that the support is appropriate.
Similarly, an argument may be raised that the child support guidelines classify on the basis of gender. This argument, however, cannot be upheld. The statute is directed toward non-custodial parents, whatever their gender may be in a particular case. An equal protection analysis therefore asks the questions whether similarly situated persons are being treated differently and, if so, whether such classification is related to the state’s objective. The view that custodial and non-custodial parents are similarly situated persons because both are parents is not appropriate. There is vast disparity of obligations between custodial and non-custodial parents. A custodial parent has the obligation to provide a full-time home, care, clothing, food, and other necessities and niceties for the children. The non-custodial parent may visit or not visit at her option and may provide as little as a few meals a month for the children. The custodial parent must provide the primary care for the child and cannot require the non-custodial parent to provide anything above and beyond the child support she is ordered to pay.
The United States Supreme Court in Truax v. Corrigan27 distinguished between necessary classification of people and arbitrary classification of people. In Truax, the Court struck down an Arizona statute that gave striking workers special immunity from injunction. The Court held that if other persons committing similar acts would be subject to injunction, the strikers should be subject to injunction as well. The state could not constitutionally give special legislative treatment to one class of tortfeasors. The Court recognized that not all classifications imposed by the state are unconstitutional; "classification of persons is constantly necessary . . . ."28 With regard to divided families, the state’s classification of some parents as custodial parents and some parents as non-custodial parents is by no means arbitrary; it simply reflects reality. Some parents have the physical and financial responsibility for the children the majority of the time, and some do not. The 1998 Georgia Commission on Child Support considered this difference in rejecting the income shares model of child support. "[T]he custodial parent is maintaining a separate household, has the child most of the time and has a limited ability to earn additional income. In almost all cases, the child’s standard of living drops significantly after a divorce while the non-custodial parent’s standard of living usually rises."29 Thus it is imperative to distinguish the custodial parent and his or her household from the non-custodial parent and her or his household.
The obligation that the parties are paying is not a common obligation. The custodial parent’s obligation to maintain a primary residence for the children and to care for the children for the majority of the time is quite different from the non-custodial parent’s obligation to pay a specified amount of money toward the support of the children on a periodic basis. As the Illinois Court stated in the Boris v. Blaisdell case:
"[C]ustodial and noncustodial parents are not ‘similarly situated’ since, after divorce, the custodial parent’s responsibility for the child’s support as well as care is general and plenary, while the noncustodial parent’s responsibility is usually limited to the requirements of the support order."30
In Winningham v. United States Department of Housing and Urban Development31, the 5th Circuit Court of Appeals upheld a federal statute that treated two categories of low-income tenants differently. The court held that such differentiation "may be unfair but it is not unconstitutional."32 Although it may be argued that it is unfair for non-custodial parents to pay a percentage of gross rather than net income, perceived unfairness is not necessarily tantamount to unconstitutionality. Georgia’s child support statute is constitutional because it fulfills the undeniably important state interest of ensuring that children are adequately supported. The 1998 Georgia Commission on Child Support rejected the use of net income in calculating child support because it "is obviously inefficient since varying payroll deductions make it difficult to define."33 The Commission’s primary concern was with fulfilling the State of Georgia’s legitimate interest in awarding appropriate child support for children.34
Georgia has a long history of upholding legislative judgments about the classification of people. One example is Bickford v. Nolen,35 a Georgia case upholding Georgia’s automobile guest passenger rule, which denies a guest or non-paying passenger injured in a car the same rights of suit as a paying passenger injured in a car. The Court held that the rule is constitutional because there is a valid state interest in "the fostering of hospitality by insulating generous hosts from lawsuits instituted by injured guests . . . ."36 If the state can create classifications of persons for the purpose of fostering hospitality, then surely the state can recognize classifications for the purpose of supporting children.
Although the guidelines may not produce a perfect result in each case, the Constitution does not require that they do so. They are aimed at an undeniably legitimate state interest, and therefore do not violate the equal protection clause.
Georgia’s child support guidelines are constitutional and, by most accounts, result in appropriate awards.37 The guidelines’ focus is the interests of the child. They are intended to be responsive to children’s needs for adequate support, not the needs or desires of non-custodial parents. This focus on the child does not violate the constitutional rights of non-custodial parents. In deciding a Georgia case, the United States Supreme Court wrote: "There can be no question about the legitimacy of the purpose to cause parents to support their children."38 The Court has recognized the basic importance of this purpose, and the guidelines were carefully constructed to fulfill it.
Rebecca A. Hoelting is an associate in the litigation department at Long, Aldridge & Norman LLP. She currently serves on the editorial board of the Georgia Bar Journal.