Nat Denman's 1990 Presentation to Family Law Section
of American Bar Association*
*This presentation was resurrected by Steven Kutney in 1996 on alt.child-support and by
Bob Hirschfeld in May 1999 in the Nat Denman Memorial Pro Se Egroup.
"Some of Nat Denman's constitutional arguments were eventually grudgingly heeded by drafters of state child support guidelines in the nearly 10 years since non-lawyer Nat wrote this incisive ABA paper," Hirschfeld, a protege of Denman, wrote.
AND PURPOSE OF THE GUIDELINES
The Congress, in order to reduce, where possible, federal welfare expenditures, has offered to fund child support collection efforts in the various states, if the states through their legislatures and/or courts established percentage "guidelines" for assessing child support payments by non-custodial divorced parents--97 percent of which are fathers, to replace the family court "due process" procedure of determining each family's cash cost of raising the children, and apportioning this cost between the parents.
State legislatures and courts desire the following:
A. Federal funds;
B. Elimination of the sometimes time consuming and often appealable (see Silvia v. Silvia, 400 N.E.2d 1330) process of taking evidence re the cash cost of support, then determining the gross and net incomes of the parents and the cash value of their property, and apportioning the cost of support between the parents or reviewing the support provisions of the divorce agreement. (Most support amounts are set by agreement of the parties, as most divorces are uncontested);
C. Elimination of very short delays in preparing and hearing motions for temporary support, the taking of exparte evidence, making orders, giving the other parent (read "father" over 90 percent of the time) opportunity to rebut the temporary order;
D. Uniformity of support orders among the state's courts and judges; and
E. A simple standard scale of percent of income, in compliance with federal requirements and established by legislation or court rule, which a noncustodial parent (read "father 97 percent of the time) could be shown as the uncontestable "law of the land" and ordered to pay, on pain of imprisonment, often without public hearings, sometimes in secret. The percentages of the non-custodial parent's, or both parents', income would be paid through the courts or automatically collected from the payroll of an employer, regardless of the noncustodial parent's (father) previous history of supporting the family and regardless of individual families' differences in cash cost of support.
2. CONSISTENCY OF THESE REASONS WITH DUE PROCESS AND EQUAL PROTECTION
I have not been to law school, but I have won some family court cases concerning due process and equal protection in state and federal courts (Silvia, supra; Howard v. Kunen, CA 73-3813-G (D. Mass. Dec. 3, 1973): Schlicte v. Gay, C.A. 1 (Oct. 1974)). It is apparent to me, to all lawyers who had a first year course in constitutional law in law school, and to the judges who have ruled the "guidelines: unconstitutional for various reasons that these guidelines must be installed and applied, if possible, so as to protect the constitutional rights all lawyers and judges are sworn to "preserve and protect and defend," else the guidelines, as efficient and desirable as they may be to some, must fall, if the reasons for adopting the guidelines do not satisfy the "benefits to society" standard.
3. GUIDELINES AND DUE PROCESS
Except in jurisdictions where the judges order the fathers out of the courtroom when their divorce cases are called, as happened in Silvia, supra, or where a father is repeatedly arrested and jailed after attempting to file a custody petition, as happened in Pokrandt v. Zane, C.A. 71-2501 (E.D. Pa.), it is understood that the guidelines eliminated the customary due process elements of:
A. Claim by the moving party re the cash cost of support of the children;
B. Submission of evidence as to the cash cost of support, subject to cross-examination;
C. Review of the evidence and application of family law by a judge;
D. A "fact specific individual award") see Fitzgerald v. Fitzgerald, No. 87-1259, slip op, at 23 (D.C. Oct. 13, 1989); 566 A. 2d 719, 732
E. In some states, the elimination of evidence re the earnings and property of the custodial parent, since the guidelines are only concerned with the percent of salary to be paid by the noncustodial parent (see Silvia, supra);
F. Proof that the children of divorce actually benefit psychologically and socially by being "kept in the style to which they have become accustomed" and that the percent of the father's income ordered paid for support will actually keep the children in such style;
G. Evidence proving that, without "guideline" levels of support, the custodial parent's standard of living declines while the former (noncustodial) parent's (father's) standard of living increases (Fitzgerald, supra at 731);
H. Many state guidelines (and those of the District of Columbia) do "not provide for a precise calculation of the support obligation of the custodial parent" (Fitzgerald, supra at 731);
I. Accountability of the custodial parent for actual expenditure for the children's benefit of the support funds ordered; and
J. In the District of Columbia, the application of existing case law, since the District's guideline "overrules existing case law" (Fitzgerald, supra at 726);
These denials of due process of law are not justified by the anticipated benefit to society's protection of the "best interests of the children" and are therefore repugnant to the Constitution for the changing of substantive law and therefore the guideline is invalid (Fitzgerald, supra at 732).
4. GUIDELINES AND EQUAL PROTECTION
The guidelines might not be repugnant to the Constitution if they assisted society in protecting the best interests of children, all children. However, the following classes of children (and noncustodial parents) are not given the equal protection of the law because the guidelines are not applied to them:
A. Children of married parents (who are required to support their children, but provide only minimal food, clothing, shelter, and medical care, not "the style to which the have become accustomed" or a percentage of parents' income).
B. Children of deceased divorced parents. In Massachusetts, estates of deceased divorced parents are not required tosupport the children.
C. Children of single mothers who will not or cannot identify the fathers.
D. Foster children (the state does not have to pay a percentage of its income for the support of these children or support them in a "style to which they have become accustomed:).
E. Children of criminal parents.
F. Children of welfare clients.
With these large classes of children who are not receiving a percentage of their fathers' income, it is easy to show that the noncustodial parent (father) is being denied the equal protection of the law applied to these children when he is required to pay a percentage of his after divorce income for the support of his children. (It may be important to note that none of the parents listed here are required to pay college tuition costs for their children, as divorced fathers are often required to do, nor support their children beyond the age of 18.) This denial of equal protection, as compared to married fathers of children under 18, was raised in proceedings in the Silvia case after the decision, when the younger boy became 18 and Family Court Judge Bowser, after six hearings, found orally that he "had grave doubts as to the constitutionality of the laws" under which the mother sought additional support from the father, while she was collecting welfare (AFDC), was receiving twice the court ordered support from the father, and was receiving $50/week from the son, who was earning $100/week part-time, and $400/week full-time in the summer.
There is another class of litigants legally responsible for the support of children, but not required to pay a percentage of income for their support: the tortfeasor. When a person illegally or accidentally causes another person to lose his earning power, such as in an automobile accident, the tortfeasor does not have to pay percentage of his gross or net income for the victim's children, to the limit of his liability for the accident or injury.
Another major class of persons denied the "equal protection of the law" by guidelines includes the divorced father himself. When the ex-wife, and the children, must be furnished with the "style of living to which they have become accustomed," the father usually does not have enough income left to keep him in the style to which he had become accustomed during the marriage. Since two smaller households cannot be maintained for the cost of the original undivided household, the father, paying out enough to maintain the wife and children in the style to which they are accustomed, winds up with a lower standard of living-a clear denial of the equal protection of the law for him. In addition, he wants to maintain living quarters where he can house his children overnight in his "parenting time" (visitation), and should be allowed enough remaining pay to provide food and entertainment for his children during the time he has the children with him. There is no allowance in "guidelines" for extended parenting time by the father (visitation costs) or travel of the father and the children when the custodial parent takes the children far away.
It cannot be said that these denials of equal protection are justified by society's interest in protecting the best interest of the children of divorce, and therefore the quidelines are repugnant to the Constitution.
Society has a great interest in the well
of all children. Family court judges protect these children and
to it that they are supported both financially and psychologically.
have been shown to support their children more by the encouragement of
joint custody, even when the mother does not want it, than if the
are made into mere visitors (or "uncle Daddies" who see them twice a
if they are lucky), who are saddled with support orders that are thinly
disguised maintenance for their ex-wives, requiring the fathers to live
in furnished rooms with bathrooms down the hall, shaming them when the
children "visit." Most fathers love their children: most
parents filing for divorce are the mothers: rigid unconstitutional
are not the way to enforce support.