Date: Tue, 18 Oct 1994 18:23:35 -0400
From: Stuart Miller [smiller@CAP.GWU.EDU]
Subject: CS & the Feds

I apologize in advance for the technical nature and length of this post, but it is necessary for those of you who are working with your State Legislatures to understand the intricacies and interdependance of Federal law and State law. Please feel free to ask for clarification and/or ...
                        as it pertains to:
                           CHILD SUPPORT
Many of you have written to us and asked that we explain the role of the federal government in your State's determination of child support. This is a valid and extremely important request. One of the most common ploys used by bureaucrats that are employed by your State agency responsible for child support enforcement, is the lie that "the federal government requires us to do this" or "there is federal legislation pending that will require us to do this." These statements are usually made in support of legislation that will give them sweeping administrative powers that will abridge your rights. In reality, there are tens of thousands of bills introduced in Congress each year and only a couple of hundred ever become law.

The 1988 Family Support Act - PL 100-495 (Public Law) is the Federal statute/regulation that outlines the requirements with which the States must comply. All States must file a "State Plan" with the federal government to show that they are in compliance. These "State Plans" are very difficult to obtain because they may not hold up well under scrutiny. These plans are filed with the Department of Health & Human Services [HHS], Administration for Children & Families [ACF], Office of Child Support Enforcement [OCSE] at: 370 L'Enfant Promenade, S.W., Washington, D.C. 20447. The Deputy Director is Judge David Gray Ross, who is located on the 4th floor. (There is no Director, as technically the Director is Donna Shelala, Secretary of the Department of Health & Human Services).

In addition to having the "State Plan" on file, OCSE must file a report to Congress on the status of child support enforcement (The most recently available report is the 17th Annual Report). These reports have a wealth of knowledge in them such as how much profit the State made on child support enforcement. A State such as California makes over $22 million dollars profit per year from hunting down "deadbeat-dads." Smaller States such as Virginia earn about $7 million dollars per year.

The essence of the federal requirement for child support guidelines is as follows: "There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded." [42 U.S.C. 667(b)] Within this basic requirement, States have been given considerable flexibility in the federal mandate that they adopt presumptive child support guidelines.

The States must provide that the guidelines establish a rebuttable presumption in any judicial or administrative hearing that the amount of support indicated by the formula is appropriate in a given case. Many States undermine the presumptive status of their guidelines by requiring detailed findings in every child support establishment and modification action, regardless of whether the guidelines are rebutted.

Less clear is the application of guidelines to non-contested cases. The issue is not addressed directly by the regulations, but is addressed in commentary accompanying the rule's original publication: "We do not believe that support orders entered as a result of stipulated agreements are, or should be, excluded from the requirements of paragraphs (f) and (g) [of the regulations]. The State's guidelines must be a rebuttable presumption of any award of child support in any state. That includes support obligations ordered by the court or administrative authority as a result of stipulated agreements reached by the parties." [56 Fed. Reg. 22,347 (1991)] Indeed, most courts have ruled that a parent may not waive a child's right to support from the other parent or that child's right to the maximum amount of support possible under the guidelines.

The findings that support deviation from the guidelines must either be in writing or specified on the record of the proceedings. The regulations require that the court or administrative authority "state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines." [45 C.F.R. 302.56 (g)].

The regulations specify one (1) set of guidelines for a State. [45 C.F.R. 302.56 (a)].

The guidelines must be numeric and result in a computation of the support obligation. [45 C.F.R. 302.56 (c)].

The guidelines themselves must provide for the child(ren)'s health care needs, through health insurance or other means. [45 C.F.R. 302.56 (c)]. This presents an interesting dilemma, in that many States use the guidelines to arrive at an amount and then add health care to the presumptive amount. It would be extremely advantageous to have health care (insurance) costs entirely included in the guidelines (which it is in many States, yet they add it in again) which would create an unusually high presumptive amount that would require the court or administrative officers to get off their fat, lazy butts and produce written findings, especially in cases where the non-custodial parent is able to include the child (ren) on their work-related health care plan at a minimal cost. Once they have to come up with written findings, they may take into consideration other valid factors. Unfortunately, most individuals responsible for ordering child support are too lazy to make written findings and as a result, shortchange the majority of obligors of money that is not rightfully child support, but is in fact, de facto alimony.

The regulations state that the deviation criteria must take into consideration the best interests of the child. [45 C.F.R. 302.56 (g)]. Many of the States have expanded on this to say that deviation may not adversely affect the custodial parent. Since deviation can be either an upward modification or a downward modification (has anyone ever heard of a downward modification occurring?) and the fact that most non-custodial parents are thrust into near poverty as a result of excessive child support payments, it would be helpful to have equal consideration for adverse affect for either parent. Arguably, it is not in the child's beat interest to financially destroy either parent.

The State may establish a reasonable quantitative standard based upon either a fixed dollar amount or a percentage, or both as a basis for determining whether an inconsistency between the existing child support award amount and the amount of the guideline is adequate grounds for petitioning for adjustment of the order. [45 C.F.R. 303.8] States have established a variety of quantitative standards. Colorado sets a threshold of 10% change; Vermont 15%; a few States use a higher threshold. Delaware uses a fixed dollar standard of $25.00 per month. A higher threshold lowers the number of cases coming before the court. Conversely, a lower threshold increase the number of cases. This only applies to Title IV-D cases (where the custodial parent is receiving welfare), but it would not seem equitable to have one standard for IV-D and a different standard for non-IV-D cases. This is the consideration, as of October of 1990, that causes the States to be required to provide modification services to both parents. Most States do not comply with this requirement, stating that they only serve mothers and that fathers must retain counsel.

The guidelines must be reviewed at least every four years to ensure that their application results in the determination of appropriate child support award amounts. [42 U.S.C. 667(a)]. The latest any State can complete the first such review is October 13, 1993. Although the basic requirements are set forth in the 1988 Family Support Act of 1988, the implementing regulations published in May 1991 were more specific in several areas than the original legislation. The content of the review must consist of considering the overall compliance of the guideline with federal requirement, a documentation of the magnitude of the deviation, as well as the reasons for the deviation; and the "best interest of the child" standard for deviations. Although the review must also ensure presumptiveness, ensure application to stipulations, review medical support provisions, include modification standard, analyze economic elements, analyze adjustments, review deviation criteria, the regulations are silent on the review process except for the requirement to collect and analyze case data on deviations.

These notes are taken in part and/or in whole from Robert G. Williams' chapter in "Child Support Guidelines: The Next Generation," entitled: "An Overview of Child Support Guidelines in the United States." Robert G. Williams is the Director of Policy Studies, Inc., in Denver, Colorado and is credited with developing the income-shares model adopted by most states. It is this writer's understanding that Dr. Williams is a non-custodial parent who paid child support on time and in full for as long as he was ordered. I think his daughter is now over the age of 18. The opinons expressed herein are solely those of the writer and not implied to be that of Mr. Williams or any other individual or entity. However the facts contained herein are real!

Stuart A. Miller - Senior Legislative Analyst
American Fathers Coalition
2000 Pennsylvania Ave., N.W., Ste. 148
Washington, D.C.  20006

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