THE CONSTITUTIONALITY OF CHILD SUPPORT GUIDELINES REDUX
Laura W. Morgan
I. The Decisions: Georgia Department of Human Resources v. Sweat and Gallaher v. Elam.
On April 29, 2003, the Supreme Court of Georgia decided Georgia Department of Human Resources v. Sweat. This case reviewed a trial courts decision declaring the Georgia child support guidelines unconstitutional as a violation of the guarantees of due process, equal protection, and privacy, and as an unconstitutional taking of property. The Georgia Supreme Court concluded that the trial court employed incorrect constitutional standards and unsound constitutional analyses, and reversed.
The Georgia Supreme Court first concluded that the guidelines do not violate the Georgia and United States Constitutions guarantees of due process for two reasons. First, the statute need only meet the rational basis test, i.e., it is reasonably related to the public health, safety, or general welfare, and not a more exacting constitutional standard, because the statute does not infringe on a fundamental right and the complaining party is not a member of a suspect class. The trial court thus erred by applying an intermediate scrutiny analysis. Second, the statute meets the rational basis test as they further the important and reasonable objective of ensuring adequate support for Georgias children whose parents have divorced. The distinction between custodial and non-custodial parents is required to ensure that each parent contributes his or her fair share.
The Court next concluded that the guidelines do not violate the Georgia and United States Constitutions guarantee of equal protection. Again, because no fundamental right or suspect class is involved, the statute need only meet the rational basis test. Custodial and non-custodial parents are not, by definition, similarly situated, and it is not true that only non-custodial parents are affected by support orders. The guidelines thus draw permissible distinctions without discriminating.
The Court further concluded that the guidelines do not violate the constitutional right of privacy. The state has a sufficient interest in ensuring adequate support for its children, and child support has never been a private function.
Finally, the guidelines do not affect an illegal taking. The guidelines are not a governmental taking of money for a public purpose, but are an effort to ensure payment of support from one parent to another.
On May 2, 2003, the Tennessee Supreme Court decided Gallaher v. Elam. This decision reviewed a Tennessee Court of Appeals decision that held that one particular portion of the Tennessee guidelines, 1240-2-4-,03(4), violated the equal protection and due process clauses of the Tennessee and United States Constitutions. This provision of the guidelines states, Children of the obligor who are not included in a decree of child support shall not be considered for the purposes of reducing the obligors net income or in calculating the guideline amount. In addition, these children should not be considered by the court as a reason for deviation unless they meet the requirements of rule 1240-2-4-.04(4). The Court of Appeals also held that Tennessees guidelines, by taking into consideration only the obligors income, also violates equal protection and due process.
The Tennessee Supreme Court began its analysis with the appropriate level of constitutional scrutiny and concluded that the guidelines need only meet the rational basis test. The lower court thus erred by applying heightened scrutiny.
Next, the Court stated that the guidelines treat obligors who have children for whom there are no orders of support differently from obligors who have children subject to court-ordered support. This distinction meets the rational basis test, because children who are subject to court orders and those who are not enjoy different benefits from the obligor.
The Court then held that the states formula for computing child support, which is based solely on a percentage of the obligors income, does not result in any constitutional violation per se. This is because the guidelines presume and it is true that the obligee will be expending at least an equal percentage of net income as that of the obligor for the support of the children for whom support is sought. Moreover, the guidelines permit a deviation from the amount calculated if the presumptions underlying the guidelines are not present in the particular case. Thus, a parent can present evidence to the court regarding his or her case that will result in the fairest possible award.
Finally, the court concluded that there was no violation of separation of powers for the Department of Human Services to enact child support guidelines. The Department was clearly carrying out the legislatures intent embodied in Tenn. Code Ann. § 71-1-132(a)(1), which directed the Department to enact guidelines consistent with the federal mandate at 45 C.F.R. § 302.56. The delegation of power was thus constitutional.
The law is clear that child support guidelines need only meet the rational basis test in order to pass constitutional scrutiny. In case after case, the courts have held that child support guidelines meets this test. Yet, non-custodial parents continue to press in state after state the same arguments: that child support guidelines violate due process, equal protection, the right of privacy, the separation of powers, first amendment rights, etc., etc. Why? (For a recent article on this question, see ABA Journal eReport, May 16, 2003.)
There is a persistent view that child support guidelines treat noncustodial parents unfairly, that the amount they pay is simply too much. This view persists even though study after study has shown that (a) noncustodial parents standard of living goes up after divorce, while custodial parents standard of living goes down; and (b) child support does not reach even the basis levels of expenditures on children in intact families as determined by the United States Department of Agriculture.
One reason for this persistent view may be the percentage of income model itself. Both these recent challenges came from states, Georgia and Tennessee, that use the percentage of income model. Although this model presumes that the custodial parent is contributing to the support of the child(ren) in the same percentage as the noncustodial parent, this presumption is not as explicit in the method of calculating support as it is in income shares model states. Where the perception of fairness is as important as fairness itself, it may be a good idea for percentage of income model states to switch to the income shares model. (See an article linking child support guidelines to increased family well-being.)
Another reason may be noncustodial parents frustration with an inability to obtain custody/visitation in an amount they desire. When a parent does not see a child as much as he or she wishes, that parent is less likely to pay support or view support as fair.
There should be no battle on this topic. All parents should agree that children are entitled to a fair amount of support, and all parents should agree that both parents, in the absence of domestic violence or other vitiating factors, should have as much access to the child as is in the best interests of the child. Fairness can be ensured by a child support guideline model that takes into consideration as many factors as possible, including both parents incomes, and access to the child should be a priority with the courts. If both these goals are realized, the constitutional challenges will diminish.