On Developing Child Support Decision Theory: Principles

Discussion Paper Child Support Decision Theory Tutorials

Project for the Improvement of Child Support Litigation Technology

April, 2004

Copyright © 2004 Roger F. Gay Regarding quotes, citations, and discussion of this paper; please contact the author:

Roger F. Gay : rogerfgay@yahoo.com

Introduction

The Child Support Enforcement Amendments of 1984 [CSEA] required each state to create a formula for the calculation of child support awards as a condition for receiving federal funding. The Family Support Act of 1988 [FSA] required the application of child support formulae, known as a guidelines, in every case in which child support is at issue and that their results be presumed correct. States are required to review their guidelines at least once every four years to ensure that their use results in appropriate child support amounts. Parents have a statutory and an apparent constitutional right to challenge the presumptive amounts on the basis that they are unjust or inappropriate in the context of their own circumstances.

Despite such rigid political treatment, little investment has been made in developing and implementing a scientifically valid child support decision model. A study conducted by the U.S. Office of Child Support Enforcement found that "few States reviewed their core guideline model or methodology." [OCSE, 1996 (Executive Summary: TOPICS ADDRESSED BY REVIEWERS)] Those that considered their model had no objective technical test to determine whether its use supported the objective of assuring appropriate child support awards. "The Federal Government set only two requirements for State guideline reviews. Every 4 years, States must (1) analyze case data related to the application of and deviations from the guidelines and (2) consider economic data related to the cost of raising children. [45 CFR 302.56(h).] Despite such minimal requirements, roughly one-half of the responding States either did not follow or did not cite these required review methods."

The OCSE study further concludes that when reviewing the cost of raising children; "Most State studies on child-rearing costs relied on national data on consumer expenditures." Estimates of the cost of raising children in intact households, purportedly derived from national family spending statistics, provide the technical basis for guidelines and are the focus of most reviews that attempt to meet federal requirements.

Modern child support guidelines have developed through political means without the benefit of independent scientific review. [Baskerville, 2003, 2002] Much is made of the importance of the economics of raising children as a basis for child support decisions and therefore guideline design. [Beld, 2003; Baskerville, 2003] States are required by federal (and often state) law to include economic research on the costs of raising children as part of their review process. According to Baskerville however, most states do not require an economist on their review panel and review committees approve guidelines and guideline modifications against vehement objections from specialized analysts.

The position in this paper is that focus on economic studies as a starting point for child support determinations is itself misguided. Child support decision theory has not developed within the field of economics. Economists have been called upon to provide information about the cost of raising children, but studies into child costs rely on family spending data that does not reveal the distribution of expenditure on individual family members. [Lazear and Michael, 1988] Moreover, without a defining theory of child support decisions, there is a wide range of interpretation of their central object – cost; ranging from satisfying the subsistence needs of children to increasing the standard of living of an entire custodial household by as much as can be imagined in light of a perception of a payer's accumulated wealth and income potential.

An alternative to direct reliance on economic studies is the establishment of policy that provides definition of the meaning and purpose of a child support award. [Gay, 1993] Prior to implementation of The Family Support Act, all states had definitive statutes as a basis for individual case decisions. Where statutes seemed vague, contradictory, arbitrary, or imposed on basic rights, clarification or an edict for correction was provided by the courts. A traditional American theory of child support developed through the application of well established child support principles in the shadow of the Constitution.

Despite political will to rely less on case-by-case decisionmaking and more on presumptively correct formulae, there is still a vital role for a formal declaration of principles upon which child support decisions are to be based. The federal statutory requirement for review of guidelines to ensure that their use results in appropriate child support amounts is unimplementable without a sufficient explanation of what an appropriate child support amount is. Putting courts in a position to judge guideline results against statutory principles would tend to force improvements in guidelines and ensure appropriate results. It is also part of the prescribed function of the judiciary to decide whether such principles are constitutionally appropriate.

To what extent can the scientific study of child support be helpful in this process? This paper confronts the question whether it is possible to set child support decision theory on a scientific footing; detached from political choice and removed from the ephemeral discourse on legal theory that is guided by legislated reforms. Principles established in traditional child support law are investigated and a set of decision principles is proposed as a starting point for theoretical development. What differentiates a set of decision principles as a basis for theoretical development from an ordinary set of policy objectives?

To embark on an independent study for the purpose of discovering the correct amount of child support would put us in a situation not dissimilar to Euclid [325-265 BC] in formally describing the scientific basis of plane geometry. To begin at the beginning, would seem to necessitate a statement of principles or postulates – that can be taken as true rather than merely convenient or desired – from which more complex natural laws can be derived. Unless there is some fundamental truth to build on, the case for a scientific theory of child support collapses. The best that might be hoped for from professional analysts would be review of guidelines to determine whether their use corresponds to politically prescribed goals, with the value of such work being dependent on the quality of stated policy objectives. Whether child support amounts are "appropriate" would be merely a matter of preference. If such is the case, it is conceivable that ordering support above subsistence level might one day be declared unconstitutional on the grounds that there is no legitimate purpose in allowing the state to force one choice over another.

Establishing that incorrect solutions to the child support puzzle are possible provides evidence that the field of possible correct solutions is limited. The next section in this paper focuses on criticism of the economic basis upon which currently popular guidelines are built, in support of the position that economic studies are the wrong place to start. Criticisms range from the use of inadequate data and the inappropriate use of data to a lack of correspondence between the realities of split households and guideline prescriptions. Although one of the primary selling points of the use of guidelines is to promote consistency, guidelines can operate in such a way that there is no consistency of principle when applied to families in differing circumstances. One later section ("Special Argument for Equal Duty") criticizes recent case law that applies a constitutional review standard intended for public social or economic policy (like welfare and taxes) seeking to assure that child support guidelines are applied as prescribed rather than examining their justness in application. The effect of these two sections in this paper is to allow a clearer comparison between the proposed approach and the currently popular approach and to eliminate the currently popular approach from the search for a scientifically valid child support decision theory.

In parallel with Euclid, it may be that more than one solution to the child support problem is possible. The shortest distance between two points is a straight line, one of Euclid's postulates, is self-evident in the context of the purpose of plane geometry, to describe mathematical laws that are valid in a plane. Although Euclidean geometry is extremely useful in construction and engineering projects, it is not entirely satisfactory in dealing with the geometry faced by sea farers circumnavigating the earth who cannot travel from one point to another in a straight line. The case for Euclidean laws becomes more complicated in the context of theories that describe space itself as curved. These problems and the alternative geometries that arose from their solutions do not invalidate Euclidean geometry. Euclid's postulates hold true in Euclidean space.

It is just as clear that context and purpose may be considered when formulating child support theory. This paper does not debate a wide range of objectives. A set of decision principles is developed, based on the concept of an implied contract, which the author believes to be the strongest candidate for developing the most comprehensive child support decision theory. Using the implied contract approach, individual obligations must be reckoned from what is true, implied by established relationships, and appropriate to circumstances. It is therefore a prime candidate as a basis for scientific as opposed to political development of child support decision theory.

The implied contract approach generally characterizes the efforts of courts and legislatures in many states prior to federal reform when courts and legislatures strove for generic "just and proper" child support decisions. (Post-reform legislation aims at more elaborate social policy goals.) The principles proposed in this paper for scientific development of child support decision theory are first extracted from traditional American child support law in "The Traditional Approach." (Even Euclid did not need to invent plane geometry solely from his own musings.) The critical step of detaching these principles from political choice and judicial decisionmaking is straightforward. In "The Principles" the proposed principles are restated and their nature is examined. It is shown that the principles are self-defining or self-evident – that they can be independently derived from context and purpose alone – successfully achieving the transition from politics to science.

The Failed Experiment

The current fashion in child support decisionmaking is to base guidelines on economic studies as an alternative to individual case decisions based on principles. [Beld, 2003; Baskerville, 2003] Yet no theoretical foundation for child support decisions has ever developed within the field of economics. In fact, the largest federally funded study of divorced fathers in the United States, which almost singularly included the economic consequences of post-divorce transfer payments, was conducted by research psychologist Sanford L. Braver. [1998] Braver and David Stockburger are also contributing to the literature on inconsistency and inequity of child support awards through a systematic comparison of objectives and guideline results. [in press]

Most states have elected to use simple formulae suggested in a 1987 document published by the U.S. Office of Child Support Enforcement. [Williams, 1987] The primary recommendation was for use of what has become known as the "Income Shares" model, which is based on an experimental statistical design developed a few years earlier as a research project for the Washington State Association of Superior Court Judges. [Hewitt, 1982] For use in welfare cases, Williams suggested an even simpler model, the percent-of-income formula proposed in Wisconsin. [Garfinkel, 1979; Garfinkel and Melli, 1990] The percent-of-income formula arose from studies of foreign child support policy conducted at the Wisconsin Institute for Research on Poverty, and bears a striking resemblance to the Russian formula developed during the Soviet era. [RSFSR, 1969] What is called the Wisconsin Model in the United States is still very close to the guideline currently defined in the Russian Family Law Code. [RFFLC, 1995]

States have not elected to use two different guidelines for welfare and non-welfare cases largely because federal funding statutes require a single state-wide child support guideline for use in all child support cases. Instead, some states have based their guideline designs on the Income Shares model and others use a percent-of-income formula. A few other states use locally developed guidelines with adjustments to cost tables such that they produce results that are similar to the two guideline types suggested by Williams.

Although there is more than one type of guideline in use in the United States today, there are no alternative sets of principles that can be listed and compared. Only variations on one standard exist in design of guidelines currently in use in the United States. [Garrison, 1999] The "continuity of expenditure standard" uses estimates of the cost of raising children in intact families as the standard for calculating the basic child support obligation of separated parents.

Economists, and others have found serious flaws in the economics upon which current child support guidelines are based. Child support economics consultant R. Mark Rogers has developed a list of analytical errors in child support related cost studies and their application. [1999, 2003; Rogers and Bieniewicz, 2000, 2002] Among his findings are that guideline cost tables are divined from intact family data that cannot be realistically related to the economic circumstances of the families to which guidelines are applied, and that while the underlying economic studies and assumptions focus on poor families and the recovery of welfare funds, they are misapplied to families at higher income levels. In the latter, the goal of forcing noncustodial parents to pay more merely because they are able matches, in at least a primitive way, the traditional concept of a means-tested government welfare program.

In the Income-Shares guideline, the basic child support obligation of a paying parent is a share of a cost estimate related to combined parental income in proportion to the payer's share of combined parental income. There are significant differences between the economic circumstances of separated households and intact households with the same combined parental income. Even if it is assumed that estimates of spending on children in intact households are accurate, the relationship between a payer's "obligation" and actual family circumstances is random. The percent-of-income formula ignores custodial parent income and simply specifies a percent of the payer's income estimated to be what the payer would have spent on his children if the household was intact.

An analysis published by the U.S. Office of Child Support Enforcement showed that results of Income Shares guidelines depart dramatically from awards by judges operating according to traditional law; specifically that their use dramatically increases award amounts. [Haskins, et al., 1985] With reference to this study, Williams stated that the goal of his recommendations was to increase child support orders by 250 percent. [1987, page II-2] An advisory panel had been established by the Office of Child Support Enforcement to propose general objectives upon which Williams' technical recommendations were to be based. A member of the advisory panel later reported that Williams' recommendations do not conform to the objectives proposed by the panel. [Krause, 1989] Harry Krause raised questions about the public interest and limits to private responsibility in recognition of the dramatic increase proposed by Williams. The independent goal of increasing award amounts is contrary to the federal statutory intent of ensuring appropriate amounts. [Henry, 1999]

Even if the general design concept had been valid, the problem of providing an appropriate child cost estimates for intact households still remains. The Income Shares model relies on estimation of the cost of raising children based on an analyst's judgment about the proportion of intact family spending attributable to the cost of raising children. [Betson, 1990] The original developer of the Income Shares model complained about the impossibility of deriving relevant information from family spending data. "A simple methodology which explicitly relies on 'user opinion' will be more effective in moving practices more uniformly toward a fair standard than does reliance on opaque and highly derivative expert interpretations of existing but fundamentally off-target primary economic data." [Hewitt, 1982; p. iii]

A fundamental problem exists in estimating child raising costs from statistical information on family spending. Much of the benefit of family expenditure is shared rather than allocated to individuals within households. Edward Lazear and Robert Michael looked at cost of raising children studies and their application in public policy while the United States Congress was preparing to order the use of guidelines in all child support cases. They noted that "... the presumption that underlies the focus of much of the empirical research and policy debate on income distribution [within households] seems born of ignorance and is supported by neither theory nor fact." [1988, p. 25 footnote] They add that "This situation can be improved." But nothing has happened since to change the theoretical basis of child support guidelines.

Work on maintaining estimates of the cost of raising children has proven the statistical approach to be indeterminate. Congress mandated an update of child cost estimates in the Family Support Act. The study contracted by the Department of Health and Human Services to meet the requirement produced a wide variety of estimates from the same data, with no rational basis for preferring one over any other. [Betson, 1990] Another study for the Virginia State General Assembly's Joint Legislative Audit and Review Committee suggests several possible ways that the cost of raising children might be estimated from intact family spending data, offering a wide range of results. [JLARC, 2000]

In 1999, the Virginia Quadrennial Child Support Guideline Review Panel hired an analyst who told them that their cost of raising children estimates, then supplied by Williams, had a "potential error range in results due to arbitrary assumptions" that was too high to be acceptable. [Byrd, 1999] A recent analysis for the panel by a theoretical labor economist recommended increasing amounts in Virginia's cost table to include a particularly high percent of family income for housing and transportation while treating other child costs as being the same as for adults. [Rodgers, 2002] At moderately high parental income, the child cost estimates were sufficiently high for the children being supported to live on their own and support their own wives and children. In both 1999 and 2002 the Virginia panel completed its reviews without defining the term "child support." [MND, 2002]

Australia began using a presumptively correct child support formula at the same time as the United States, mandated by Child Support (Assessment) Act of 1989. [CSA] Their formula is a modified form of the Russian (Wisconsin) percent-of-income formula. A study by The Joint Select Committee on Certain Family Law Issues concluded that the formula is ‘arbitrary’ and called for the development of an alternative. [JSC, 1994] It would be difficult to imagine that such a simple scheme would make much sense outside of a highly controlled economic system in which a state dictates distribution of private wealth. Applying the economic criteria of horizontal and vertical equity, Anthony Farr and Gary Buurman have recently shown that the Australian formula does not correspond to objectives prescribed by the CSA. [2003]

A recent inquiry into the Australian child support scheme by the Standing Committee on Family and Community Affairs produced familiar conclusions. [Australia, 2003, p. 133 para 6.43]

Unfortunately ... the committee finds itself in a similar position to the Joint Select Committee on Certain Family Law Issues on the question of the cost of children. Some analysis has been done, but for intact families only, not separated families. After some seven years the answers needed to accurately evaluate the formula percentages are still not available. Key researchers ... agreed that modelling the cost of children in separated families is needed. The committee concludes that all available research portrays what intact families spend on children not what children cost. ... Substantial complaints about the cost of child support continue to be made very forcibly. The anger and frustration amongst child support payers and payees continues.

Neither Income Shares guidelines nor percent-of-income formulae have been shown to correspond to any standard of fairness or equity. It has specifically been shown that neither provides an equal standard of living [Braver and Stockburger, 2003] and that the percent-of-income formula (Australia) does not result in equal parental sacrifice. [Farr and Buurman, 2003] In addition, some of Braver's findings cast doubt on the reasons for changing policy to begin with; turning to the use of rigid child support formulae as a replacement for case-by-case determinations and instituting expensive national enforcement systems. [1998] Contrary to the popular image of "deadbeat dads" who abandon mothers and children to poverty, he found divorced mothers as a group better off than fathers and fathers providing generously to the extent they were able.

Canada also adopted child support guidelines as a result of legislation in 1997. Paul Millar and Anne H. Gauthier [2002] found that "some of the original research that led to the belief that raising child support awards was an important tool for reducing child poverty has since been proven inaccurate." Their study "finds that mistaken beliefs and special interest groups led the government to ignore key research findings, resulting in guidelines that have considerable room for improvement." They also comment on several approaches to the cost of children question. Similar to Braver's findings in the United States, a Canadian Department of Justice study showed post-divorce women, prior to child support reform, reporting higher standards of living than men. [DoJC, 1990] This provided more evidence that forced increases in child support transfers were inappropriate. Millar and Gauthier in Canada as well as Roger F. Gay in the United States [1995] have reported that guideline results contain spousal support or "hidden alimony."

Sweden has used child support guidelines for many years. As in many other countries, the Swedish government's interest in the amount contributed by noncustodial parents corresponds to the state's contribution to single parent welfare in a wide range of circumstances. In 1996, following the lead of other countries, Sweden's child support formula was adjusted so that low-income parents would be required to repay more of the state's basic support entitlement. A recent study however, showed that the prominent effect was to force noncustodial parents into debts they were unable to repay, leading to a high number of cases overloading their state collection system. [Sweden, 2003] Child support could not replace the state welfare system as a solution to poverty. Sweden has recently strengthened their presumption of joint custody, reduced the basic amount of child support required in order to more accurately reflect family circumstances, instituted a more equitable sharing of entitlements between parents, and provides support for individual case review in low-income cases in which parents believe their child support amounts are inappropriate.

The attempt to develop guidelines that produce appropriate results based on statistical analysis, generally referred to as economic studies, is a failed experiment. The appropriate amount of child support to be awarded cannot be determined from economic data. The approach leaves basic decisions to special interest influence and the unchecked preferences of analysts. This is not to say that economic analysis will never have a place in the full development of a detailed child support guideline or the development of child support decision theory. It is the focus on economic studies as a starting point for developing child support theory that is misguided. Economic studies may be useful, but they do not offer a viable alternative to rational decision principles.

The Traditional Approach

Traditional child support law, the state statutes and case law that were established prior to federal reform, developed in the United States over more than two centuries in the shadow of the Constitution and provides a well-developed foundation for child support decisions. Statutes varied in exact language, and contained clauses that effected the logic of decisions. Nonetheless, case law provides a significant empirical study and a wealth of basic reasoning about the child support problem. Courts were given the task of determining just, proper, or appropriate awards based on what is true, implied by established relationships, and appropriate to circumstances. Researchers should sense an analogy between due process of law (at its best) and scientific process. Each case provided an opportunity to propose and test principles while appellate decisions served to clarify, generalize, and correct from the experience of multiple cases. This investigation is concerned only with the nature of objective decisions and is not bound by civil law. The effort to extract fundamental principles from case law requires focus on natural context and purpose.

In the early 1980s, some five years after the creation of the federal Office of Child Support Enforcement, the legal community was aware of a political movement aimed at instituting state-wide child support guidelines. This was for example, the explicitly stated motivation for the Washington State Association of Superior Court Judges study of the Income-Shares approach by Hewitt [1982] mentioned in the last section. Hewitt's study discusses competition between guidelines developed by local bar associations, based on established law, that were in use by individual judges and generally accepted in counties. Some courts also became interested in providing a review of child support law and commenting on the use of guidelines. A selection of traditional case law that is specifically concerned with child support guidelines is presented in this section, with a focused intent of extracting fundamental principles that are directly related to the purpose of child support awards and the natural context related to decisions.

In the Marriage of Smith [1981], a mother who had previously been on welfare appealed a non-welfare related child support decision, suggesting extended use of the welfare department's formula. She claimed that the "very general and imprecise" standard upon which "just and proper" child support decisions were based in non-welfare cases led to a "grossly inadequate" award. The Oregon Supreme Court chose to review child support law generally and comment on the alternative use of a child support guideline. The court comments in this decision that it had itself requested "a guideline which this court could furnish to the trial courts for application in fixing the amounts payable for child support." "In response," the mother suggested application of the rules of the Support Enforcement Division, that had at that time, prior to federal reform, been applied only in cases in which recovery of welfare funds was at stake.

It was clear that the mother's view of adequate child support conformed to the “continuity of expenditure” goal explained in the section above.

... the mother on oral argument suggested a system based on the noncustodial parent's "ability to pay" and the child's "needs." Under that system the net income of the paying parent would be the most significant factor in determining the "ability to pay." The child's "needs" would be defined in the same respect as with spousal support; that is, they would be geared to the standard of living that would have been enjoyed but for the dissolution. Yet "need" would also be based on evidence of actual, necessary expenses and the expected costs of child rearing.

The court rejected this extension of the use of the welfare system child support guideline in non-welfare cases, explaining that the assumptions upon which welfare guidelines are based are not generally valid.

... it was undoubtedly assumed that the custodial parent had custody throughout the year and was a recipient of governmental benefits, with a poverty level income and limited assets. ... As one commentator explains, "Tables such as these are of questionable value where both parents are employed or employable, and they are utterly useless in cases of joint custody." (Franks, How to Calculate Child Support, 86 Case & Com 3 (1981)). ... Second, the tables are unrealistic where a parent's net monthly income is substantial. Once a parent's income is over approximately $2,000 per month, the needs of the children in reality do not increase in proportion to the increases in the parent's ability to pay. Third, the tables fail to reflect the view that both parents must contribute to the best of his or her ability to the financial support of the child, and the view favoring visitation or joint custody when it is in the best interests of the child. [emphasis added]

The court specified limitations in its case study data and limited the application of its conclusions to cases in which "the parties' incomes or assets, or both, are large enough to allow some flexibility in the award of child support without depriving either party of the basic necessities of life." In rejecting the welfare standard, the court pointed out that a "just and proper" child support decision considers a wider range of factors. The actual circumstances and ability of each parent to provide for the needs of children, not pre- and post divorce continuity of a custodial parent's economic status, lie at the heart of appropriate award decisions.

All of the circumstances of the parties as well as the needs of the children must be considered. One such circumstance is often the impossibility of maintaining the same lifestyle that the child would have enjoyed but for the dissolution. In that situation, the child must share the overall burden of the lower standard of living caused by the expense of maintaining two separate households. In considering the circumstances of the parties, it is reasonable to require the party with the greater earning capacity to bear a greater portion of the financial burden of the child's upbringing. Yet the burden on the one paying support should not be so heavy as to preclude the ability to support oneself and one's other dependents. [emphasis added and case citations omitted]

The court did not reject entirely however the objective of increasing children's standard of living in consideration of the standard of living that might be possible if the family was intact.

It is significant that the legislature chose to express the standard in terms of what is "just and proper" rather than solely in terms of need. We have concluded, in light of this choice, that the purpose of child support is not merely to prevent the child from becoming a public charge. Thus, we have considered, at least as far as practical, "comforts and luxuries of life" that the child would have enjoyed had it not been for the dissolution. [case citations omitted]

The court cites statute and case law to establish that "The income of both the custodial and noncustodial parent should be considered, regardless of the sex of either. Both parents have a duty to support their children." Its suggestions regarding construction of a mathematical guideline however only apply this parental duty standard to the division of children's needs in proportion to the incomes of the two parents. There is an apparent fuzziness in its general description of children's needs that is at least partly due to the court's view that "each case must be considered on its own facts." It specifically points out that proper decisions consider the interrelationship between child support and other parts of each decree such as property division, spousal support, tax consequences, custody and visitation, and special medical arrangements.

The court's objective in reviewing child support law generally was "to develop general principles to the end that similar cases will be treated similarly." It regarded a "guideline" as a simple starting point rather than a presumptively correct formula. The difference is that development of a presumptively correct formula requires a complete and valid theory – a general solution – rather than a collection of concepts and considerations that assist in independent case decisions. The court's argument suggests that children's needs are generally defined as being between two extremes; that of mere subsistence and a standard of living "that the child would have enjoyed had it not been for the dissolution." The problem for development of a specific child support decision theory is the same as that faced by trial courts; to specify where in that range each decision should be.

In the Marriage of Hering [1987], the Oregon Appellate Court refined of the supreme court's response to the continuity of expenditure standard. "... the money is for the support and welfare of the children, not for the enrichment of the custodial parent.” Deriving this standard merely involves contrasting the goal of enriching custodial parents with the purpose of child support. It is not a surprising result. Spousal support can be awarded separately when appropriate, therefore inclusion of spousal support in a child support award was regarded as illegal. It has a decisive effect in the current discussion however. This standard cannot be implemented unless child support awards are directly related to children's needs in actual circumstances rather than those that might have occurred if the parents lived together. The latter offers no test as to whether the money is actually for support of children, enrichment of the custodial parent, or both.

The appellate court's view implies a refinement in the duty of both parents to provide support. There is only one option that avoids arbitrary shifting of the duty from one parent to the other to the benefit of one parent or the other. The duty of both parents to support must be regarded as equal.

The author contends that "both parents must contribute to the best of his or her ability" implies equal duty, and that courts generally regarded the parental duty of both parents to support as equal; especially given that equal treatment is a mandate of common law that carried over to constitutional law. This is a critical and often contested point however, and a basis of complaints against traditional child support law, and deserves special attention. A special argument for equal duty is presented in the next section.

Recognition of the general importance of custodial status does not conflict with the equal duty principle. The operative Oregon statute in Smith and Hering stated that child support is "For the recovery from the party not allowed the care and custody of such children, or from either party or both parties if joint custody is decreed, such amount of money, in gross or in installments, or both, as may be just and proper for such party, either party or both parties to contribute toward the support and welfare of such children." [ORS 107.105(1)(b)] Consistent with the equal duty principle; noncustodial parents have been child support payers and custodial parents have been recipients.

In 1984, the Pennsylvania Supreme Court performed their own review of child support law in consideration of the use of guidelines. [Melzer v Witsberger] They cited Smith and as in the Oregon case cited Maurice Franks' work on child support mathematics. [Franks, 1981] Working in Colorado, Franks had reviewed existing child support law and developed one of the most complete mathematical models based on established child support law available at the time.

The Pennsylvania court began its review of child support law with a air of confidence. "The fundamental requirements of child support are clear." ... "Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability."

In agreement with the Oregon Supreme Court in Smith, the Pennsylvania court considered guideline results to be a starting point rather than a presumptively correct conclusion. It was up to trial courts to determine the needs of children and ability of parents to provide in full light of facts and circumstances that were not adequately considered in any known guideline; not even in the cited mathematics of child support developed by Franks. As in Smith and Hering, the Pennsylvania court imposed limitations on the understanding of children's needs. "... parents are legally obligated to provide only for the reasonable expenses of raising their children. ... parents do have an obligation to share with their children the benefit of their financial achievement."

Nevertheless, neither parent should be obligated to pay for "extras"—those items which go beyond what is reasonably necessary for the children's welfare--in which that parent does not concur. Neither parent should be permitted to increase the parties' support obligations by unilaterally indulging the children in things which are not reasonably necessary for their well-being. ... in each case the hearing court must first calculate the reasonable expense of raising the children involved, based upon the particular circumstances--the needs, the custom, and the financial status--of the parties.

In 2002, a Georgia trial court declared the Georgia state guideline unconstitutional. [Alapaha Judicial Circuit] The court applied an intermediate constitutional review standard, allowing a detailed analysis of the state's child support guideline to be considered. The trial court relied on economic analysis by R. Mark Rogers, whose criticisms of guidelines are cited in the section above. (This case was overturned by the state supreme court, which applied the lowest standard of review as discussed in the next section. Judgments that apply the lowest constitutional review standard are not of interest in this section.) In making its decision, the trial court defined three requirements for constitutionally acceptable child support decisions. It generally described the relationship between its constitutionally based standard as it would apply to the construction of a guideline and traditional child support law as follows. [Alapaha Judicial Circuit, section "The Constitutionally Acceptable Child Support Standard"]

This standard is not dissimilar to the former needs vs. ability to pay standard, but with the additional criteria that the needs are not excessive, the ability to pay is that of both parents and that the method of calculation is economically rational.

The court described the three decision principles required for "constitutionally acceptable" awards. [legal citations omitted from the quote below]

This Court finds, as a matter of law, that a constitutionally sound standard for the determination of child support guidelines can readily be determined.

First, it must acknowledge ... that both parents are obliged to support their children in accordance with their relative means to do so. The Supreme Court of the United States has provided ample reason to conclude that any guideline discriminating against either parent would be found constitutionally defective. The decisions of our sister States in holding unconstitutional statutory presumptions that custody of children of “tender years” should be awarded to the mother is also persuasive. Procreation is both a joint act and a joint responsibility.

Secondly, it must conform to long-acknowledged limitations on government intrusion into the rights of families ... That is, the government’s interest in family expenditures on children, whether that family exists before or after the dissolution of marriage, or even in the absence of marriage, is limited to insuring that the children’s basic needs are met. Not extravagances, not luxuries, but needs. Once that occurs, government intrusion must cease.

The third and final criteria is that the means chosen for the purpose of determining need and allocating each parent’s respective responsibility in meeting that need, whether in the form of a presumptive guideline or otherwise, must be based on a rational relationship between the predicate facts and the conclusion(s) directed.

The first principle for constitutional acceptability is that both parents have an equal duty to provide for their children. The second principle is that the purpose of child support is limited to supporting children. The third is that child support decisions must be rationally related to actual facts and circumstances.

In Smith, the Oregon Supreme Court presented a rather fuzzy description of children's "needs," leading to what seemed to be an uncertain balance between two extremes; that of merely meeting the subsistence needs of children and the “continuity of expenditure” standard. At least in part, the court was merely warning against an overly simplified formula that did not properly consider relevant circumstances; such as property division, spousal support, tax consequences, custody and visitation, and special medical arrangements, when calculating how children's needs are met. This problem is met by consideration of all relevant circumstances.

Smith considers the '"comforts and luxuries of life" that the child would have enjoyed had it not been for the dissolution.' Hering warns that child support is not for the enrichment of custodial parents. Melzer says that 'neither parent should be obligated to pay for "extras"—those items which go beyond what is reasonably necessary for the children's welfare.' The Alapaha Judicial Circuit court, in defining a constitutionally acceptable basis for child support awards says that 'government intrusion into the rights of families ... is limited to insuring that the children’s basic needs are met.' The more restrictive interpretation by the Alapaha court was given in the context of ruling on the constitutional limits to the state's interest as expressed through a legislatively imposed, presumptively correct child support formula, while the more liberal views expressed in the other two rulings, although formed in the shadow of statute, applied to private lawsuits in which all parties have rights and interests.

Principles derived from Smith and Hering (Oregon), and Melzer (Pennsylvania) as well as the mathematical work by Franks (Colorado) cited by both those courts demonstrate correspondence between the constitutionally based conclusions of the Georgia trial court and the basis of child support decisions that had evolved in other states. The author also reviewed traditional statutes in Indiana and Washington prior to implementation of federal reforms and found them to be similar to those in Pennsylvania, Oregon, and Colorado. In addition, the first statewide guideline in Delaware, known as the "Delaware-Melson formula," in its earliest form, was based on traditional law and showed conceptual correspondence with the laws of other states. [Thompson, 1984] Similar views regarding traditional principles have been expressed by lawyers and others experienced in child support issues in many states in private discussions with the author over a period of several years.

Special Argument for Equal Duty

The author contends that "both parents must contribute to the best of his or her ability" implies equal duty, and that under traditional law courts generally regarded the duty of both parents to support as equal; especially given that equal treatment is a mandate of common law that carried over to constitutional law. This is a critical and often contested point however, and a basis of complaints against traditional child support law, and deserves special attention. This section extends the argument for equal duty. It also shows that arguments corresponding to the lowest constitutional review standard are invalid and therefore not useful in the search for a scientifically valid decision theory and demonstrates that the social policy approach that corresponds to use of the lowest constitutional review standard is impractical.

Application of different constitutional review standards has sharply divided the debate on guidelines in the United States by opening a huge gulf between legal understandings of what makes a decision arbitrary. Post-reform case law applies the lowest standard of constitutional review standard, which is designed for macro-level social or economic policy like welfare and taxes. Decisions made under the lowest constitutional review standard are concerned only with whether formulae are applied as prescribed and therefore perpetuate any flaws that the formulae have. Low level constitutional arguments allow individual rights and rational relationships between actual circumstances and specific orders to be disregarded and provide no objective standard for determining whether child support awards are appropriate.

Debating the Georgia guidelines from a social policy perspective, Hoelting [2000, section Equal Protection Clause Review Of The Georgia Child Support Guidelines] argues that custodial and noncustodial parents are not "similarly situated."

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.

Whether or not parents are similarly situated is relevant to judgments on violation of the equal protection clause of the Constitution. The intent of the argument is not to establish the alleged facts as universal postulates. Once a court has chosen the lowest constitutional review standard, it is only necessary to rationalize the purpose of legislation in order to protect a statute in general. It is not necessary to validate individual case results except to show that a statute was applied as prescribed. Applying the lowest constitutional review standard and overturning a lower court's decision that the Georgia guidelines are unconstitutional, the Georgia Supreme Court opined that custodial and noncustodial parents are not similarly situated. It therefore rejected the necessity of equal treatment under law. [Georgia DHR v. Sweat, 2003, p. 8]

It is fundamental that no equal protection violation exists unless legislation treats similarly-situated individuals differently. Contrary to the trial court’s conclusion, custodial and non-custodial parents are not, by definition, similarly situated. The custodial parent often contributes to the costs of caring for children, and also takes primary responsibility for the day-to-day care of a child, maintains a separate household suitable for the children, and depend upon the Guidelines to ensure he or she receives adequate financial resources from the non-custodial parent to assist in raising the child. Non-custodial parents generally have measurably less involvement in the day-to-day care of children, and depend on the Guidelines to ensure that their financial support obligations are not out of proportion to their income level. Of course, the financial contributions of non-custodial parents are significant and are often the result of hard work and sacrifice; nonetheless, it is generally true that “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.” Accordingly, the trial court erred by concluding that custodial and non-custodial parents are similarly situated.

The argument against equal protection rests on presumed differences in circumstances between custodial and noncustodial parents, focusing on differences in day-to-day care. Whether or not the presumed differences are generally or most often true; no contradiction to the equal duty principle exists in the arguments. There is no reason for custodial status per se to effect the amount of an award. Differences related to custodial status are accounted for when considering actual family circumstances. Differences arising from custodial status are important in making child support decisions, even when the Constitution is in force. An obvious example is that, owing to the fact that custodial parents provide more day-to-day care, noncustodial parents have consistently, even under traditional treatment, been child support payers and custodial parents recipients.

It may seem convenient to, once and for all, proclaim that custodial parents bear greater responsibility in the day-to-day care of children. On that basis, it may appear desirable to increase child support amounts for all custodial parents. It is important to understand why such social policy choices are not scientifically acceptable. Holding that a relation found at the aggregate level, even if generally or often true, applies equally to individuals constitutes an ecological fallacy. As basic scientific principle; if every case is decided properly in relation to actual circumstances, it is guaranteed that the cumulative statistical result will be correct. The inverse is not true unless there is sufficient continuous uniformity in the characteristics of every member of the group(s) from which cumulative results are derived and to which they are applied. Family circumstances to which guidelines are applied are highly diverse. Therefore, the social policy approach is invalid.

The legal arguments above do not support the conclusion that a fundamental qualitative difference exists. The fallacies are that custodial and noncustodial care is uniformly unequal in the style and importance and that noncustodial parent care is limited to the child support transfer payment that is ordered. None of the specific differences asserted in the arguments hold true. Noncustodial parents also maintain separate households, provide day-to-day care while their children are in their custody during visitation periods, and can as well depend on just and proper child support orders to ensure that adequate support is available in both households. In the longest study of custody arrangements, Richard Warshak found the quality of care by fathers equal to that of mothers and in some cases more important. [1992] The claim that "the noncustodial parent’s responsibility is usually limited to the requirements of the support order" admits that the conclusion is not always true. In addition, Paul Henman and Kyle Mitchell looked at the cost of contact between children and noncustodial parents and found it to be much higher per unit time than raising children in intact households. [2001] The substantive argument "by definition" of custodial and noncustodial status is that children usually spend more time in the care of custodial parents than noncustodial parents; which is a limited, variable, circumstantial distinction that does not support qualitative conclusions as universal postulates.

If the fundamental duty of parents to support their children is not equal, then what is it? In the social policy perspective, this is a political question rather than a practical one. Arguments in favor of bias can go either way and the pendulum at present has swung in favor of custodial parents. Arguing group-oriented generalities in favor of men; men are more often primary bread-winners and women most often file for divorce. Men go to considerable effort to accumulate wealth and improve their economic status in order to maintain homes and families. (The court notes above that "the financial contributions of non-custodial parents are significant and are often the result of hard work and sacrifice.") Divorce creates a critical loss that requires him to start again. He should therefore be entitled to all marital property and suffer no loss to his independent economic achievements as the result of divorce. It can as easily be argued that parents who have custody should be required to care for them; not the state nor abandoned noncustodial parents. Child support is a cost of parenting. It can even be argued that custodial parents receive a disproportionate benefit from the relationship with their children, greater satisfaction in parenting, and a desirable social status and that noncustodial parents should be compensated for their loss. That such policies are an advantage to children can easily be achieved by a preference to award custody to men.

As unacceptable as the policies described in the last paragraph may seem today, they were not unacceptable in past centuries, and are part of the thinking behind social policies in some countries today. Understanding the instability of political control is part of classic western knowledge. To develop an enduring theory that will work in practice, a stabilizing principle is required that instantly neutralizes the political advantages that one group may from time to time have over another. The point of stability for a scientifically developed child support theory must be that point at which the focus of the theory is on context and purpose. The equal duty principle commits the theory to that point.

The application of stereotypes would substantially impede progress toward a general theory. One stereotype would apply to cases in which sole custody is awarded, another when joint custody is awarded. (In fact, every state guideline reviewed by the author used two different calculations to adjust for parenting time – one when sole custody is awarded and one for joint custody.) Perhaps a separate set of stereotypes would be needed to characterize never-married parents because they are more often poor. Those stereotypes might need to be blended with another set of stereotypes for cases in which mothers are on welfare and when they are not. An entirely different set of stereotypes might be applied when fathers have custody because statistically, men as a group have higher income than women. Taking this approach guarantees inappropriate results unless the set of stereotypes becomes so refined, comprehensive, and complex that there is a blended stereotype that matches each actual family situation. From a practical perspective, it makes more sense to focus on developing a detailed model relating details of family circumstances to begin with.

At present, it is the legislatively defined responsibility of courts to identify the stereotypes that are at play in a guideline's design, formally analyze and express how individual cases are dissimilar, and develop their own formulae for calculating appropriate deviations. The stereotypes are not revealed in statutes and are only identified by complex and expensive proceedings with expert testimony. Opposing the efforts of trial courts to balance the effects of stereotypes are appellate judgments like that above that tell them that built-in stereotypes must be presumed true. This leaves the legislature, rather than the judiciary, as the primary arbiter of appropriate award amounts.

Handled politically, the situation is worse than attempting to develop fair standards through independent analysis of stereotypes. Each step of the way, special interest groups would fight for recognition of their situation in relation to continually reformulating policy. Even with enormous long-term effort, the political process does not guarantee convergence, but could allow the pendulum to swing back and forth indefinitely. Politically established problems can be extremely stubborn. Stephen Baskerville has documented that many key decisionmakers have a direct interest in maintaining the system as it is. [2004] Journalist Mat Welch exposes the difficulties men have in overturning paternity judgments after DNA tests prove they are not the fathers of children they have been ordered to support. [2004] Concerned father Robert W. Ingalls wrote a book about about the extreme systemic problems he encountered in Virginia that block fair accounting of noncustodial parents' financial supporting during visitation periods. [2002] With great focus on the heroism of military service during the war on terrorism, The Toronto Star reports that efforts are being made to streamline applications for child support adjustments when U.S. National Guard personnel and reservists are called to active duty, without guaranteeing results. [2004]

In review of child support law, it is only possible to find correspondence between court opinions and those that would satisfy scientific scrutiny when a higher standard of review is applied or when courts are assigned the task of determining appropriate awards from what is true, implied by established relationships, and appropriate to circumstances. In the above case, the court's judgment was that child support award amounts could continue to be determined politically. It decided that the general validity of legislated guidelines could not be tested by application in individual cases.

Statute and case law supporting implementation of the federal reforms (roughly since 1989) do not have the same credible relationship to scientific process as traditional case law. Following federal reform, courts have treated all child support law as social or economic policy, like state welfare entitlements and taxes. Appellate review is concerned primarily with whether guidelines have been applied as prescribed. Constitutional challenges are reviewed using the lowest constitutional review standard, which allows individual rights and rational relationships between actual circumstances and specific orders to be disregarded.

Those interested in a better understanding of the contrast between review standards can study the Alapaha Judicial Circuit [2002] decision in which an intermediate standard was applied to the Georgia state guideline. (A section from this decision is presented in the section above.) The court found that individual rights were violated and declared the guideline unconstitutional. Applying the lowest standard, the Georgia Supreme Court overturned the Alapaha Judicial Circuit decision in Georgia DHR v. Sweat. [2003] (A portion of which was discussed in this section.) Debating in the Georgia Bar Journal, William C. Akins [2000] presents an intermediate level constitutional argument against the Georgia guideline and Rebecca A. Hoelting [2000] presents a social policy argument in favor of the same guideline. The lowest standard was also applied by the Ninth Circuit U.S. Court of Appeals in P.O.P.S. v Gardner [1993] in which the Washington State guideline was declared a constitutional implementation of the state's social and economic policy. In Fitzgerald v Fitzgerald [1990] the D.C. Court of Appeals declared a guideline unconstitutional because it substantially deviated from established child support law. Surprisingly, no court has yet chosen the highest level of review in recognition of the overwhelming privacy concerns related to family issues and private economic concerns.

The Principles

Context and purpose may be considered when formulating child support theory. The critical step of detaching principles from political choice and judicial decisionmaking in this paper is straightforward. The principles are simply restated and their nature discussed. The principles are shown to be self-evident; that they correspond to and are limited to the purpose of a child support award and the context to which the purpose is applied. It is also demonstrated in this section that requirements and specifications for a more detailed decision model can be deduced from the principles.

What is child support?

A first principle should define the purpose of a child support. Without a statement of purpose, it is unreasonable to begin discussion of relevant context and relationships. This may be regarded as a truism; child support is for the support of children. In the section above, it was clear that the purpose must be stated carefully. Implied contract derivation did not lead to a conclusion that child support is limited to subsistence support, nor to a simple conclusion that a child's primary household should be provided the standard of living affordable by both parents together. The question is more complex, and additional principles will be needed in order to limit the range of possible outcomes. The following statement of purpose is definitive without imposing an arbitrary limitation.

Purpose Principle: Child support is for the care and maintenance of children.

If the statement read only that child support is for the maintenance of children, it could be argued that the purpose is limited to subsistence support. But the purpose is broader, to include care of children, allowing a more complete consideration of children's needs similar to that discussed in the section above.

A statement of purpose might be formulated without reference to the term "maintenance" because maintenance can be seen as necessarily included as part of "care." Maintaining a child however, is a basic requirement of such importance that public assistance is available to parents that cannot meet the requirement. Parents who fail to maintain their children may face loss of custody to the state and criminal penalties. The use of two terms in the purpose statement provides a language that distinguishes between subsistence needs and further "comforts and luxuries of life" that some parents can afford.

Who is required to provide?

The purpose of child support is not sufficient to define the purpose of a child support award. A child support award is the specification of transfer payments between responsible parties in recognition of the financial obligation they have to support children. Parents are responsible for the care of their children.

There is no reason that a complete child support decision theory, or application of the theory, should not include other parties; the government for example, step-parents whose lives are economically joined with children in their households, "children" who are at least partially self-supporting (are emancipated or have completed school at an early age), or other adults who have agreed to care but are looking for a fair-sharing financial arrangement (grandparents, for example, who may wish to assume the parenting role as proxy for their children as an alternative to other custodial arrangements). The focus here however is on the power of the state to define a private obligation. All but the parties who have the fundamental right and obligation to care for their children are alternative or supplemental. The relationship between the obligations of the parents must be defined. There is only one definition of the relationship between the obligations of parents that does not introduce a presumptive bias.

Relationship (equal duty) Principle: Both parents have an equal duty to support their children.

This supplementary purpose principle, the relationship principle, is required in order to define the purpose of a child support award. But it is an incomplete definition, describing only a relation, unless taken together with the first purpose principle that defines the purpose of child support. The implied contract principles are interdependent and must be considered together. The meaning of "equal duty" here, and as defined in traditional case law, is not that parents are required to make equal financial contributions. It is in the equal duty principle that continuity with the obligations of parents in intact households is expressed. Child support is the responsibility of parents; not one parent or the other, but both. The whole purpose of child support, generally stated, is that children are supported by their parents; nothing more, nothing less.

It is impossible to justify the inclusion of "care" in the purpose principle based on a state's interest. In regard to maintenance, the state either provides additional support if needed or may prosecute parents for not maintaining their children. In the matter of care, parents are free to choose. The implied contract standard is not predicated on a state's interest however, but on the interest that one parent has in imposing upon another to share the support obligation. From the perspective of exercising state power, there is no distinction between the parents in defining the purpose of a child support award. That would merely introduce a bias that would interfere with the parental role.

Obviously, purpose alone is insufficient to determine the amount of a child support award.

What other factors may be considered in making a child support award decision?

Separated households differ from intact households in that the parents' interests are no longer entwined. The obligations and liabilities in the relationship between parents are limited. It is unique to separate households that one parent requests an outside decisionmaker to determine the extent of the enforceable liability of the other. In the introduction, it was argued that context and purpose may be considered when formulating child support theory. Purpose has already been defined. The other factors that need to be considered are a matter of context; the family circumstances that are specific to each decision. Without this additional consideration, a specific liability would be indeterminable.

In the quest for the most comprehensive theory, the least restrictive consideration of context is the best place to start. The principle is cast in terms of family circumstances, and is restricted only in that the circumstances must be relevant to the purpose. The proper interpretation of the principle, requires that all three principles are understood as interdependent and must be taken together.

Context Principle: All relevant circumstantial information may effect the amount of the award.

The three principles provide a doctrine of fairness in dealing with child support decisions developed through the implied contract approach. There is a direct correspondence between the principles and the purpose of a child support award and the context to which the purpose is applied. All three are necessary for development of a more detailed theory of child support decisionmaking. "Child support" must in fact be child support. Awards must be appropriate to circumstances and equitable. A goal statement corresponding to the implied contract principles could be stated as; to award equitable child support that is appropriate to family circumstances.

The work of developing a detailed decision model requires mathematical derivations, analyses, and tests that are beyond the scope of this paper. Before proposing the implied contract standard as a starting point for that work, it should be demonstrated that the principles are useful. The remainder of this section contains a discussion of relationships between circumstances and the purpose of a child support award that illustrates that model requirements and specifications can be deduced from the principles.

Proposition: The two critical facts that must be ascertained are children's economic needs and the division of the obligation between the parents.

Regardless of marital status, one parent may be in a much better situation to provide financially than the other. It may be impossible for two parents to contribute equally. As its name implies, the Income-Shares model uses relative income (and sometimes relative gross income) as the primary factor in determining the division of the total joint child support obligation. Traditional law took a broader view. The Pennsylvania Supreme Court summarized the relationship quite clearly in Melzer v Witsberger. [1984] "Both must be required to discharge the obligation in accordance with their capacity and ability."

An extreme example shows that the conclusion of the court is justified by circumstances rather than a mere policy. If one parent is fully capable of providing for a couple's children, and the other is entirely incapable, then practicality demands that the capable parent provides fully for their children. The general rule of obligating separated parents in proportion to their ability simply extends the principle that is so obvious in the extreme; never compromising the joint (equal) duty parents have to provide for their children. To implement the proportionality rule, all of the circumstances of the family that are relevant to determining each parent's ability need to be considered.

The proportionality rule does not dictate strict proportionality of obligation in relation to income or assets. First, only the amount parents have available to spend, not gross income, can be included as relevant to their actual circumstances. Second, supporting oneself and other dependents are also practical demands, dictated by circumstance; survival of parents and supporting children are relevant to support of children. At lower income, it is obvious that proportionality to ability and capacity is the rule, not proportionality to income and assets. It is fundamental to consideration of circumstances that obligations should not be defined that parents are unable to fulfill. At least some portion of income and assets must be dedicated to self-support. "Yet the burden on the one paying support should not be so heavy as to preclude the ability to support oneself and one's other dependents." [Smith, 1981]

Another difficulty with proportionality to income and assets is apparent at another extreme. If a couple has one child, one parent has a take-home pay of $100,000 per year and the other a take-home pay of $200,000 per year, both are free of debts and other obligations, and the child has no extraordinary needs, then both parents are obviously fully capable of satisfying the child's economic needs. The large gap between their incomes and their own self-support needs allows assignment of obligations more in proportion to income than if their incomes were low. (The ratio of income minus self-support to income gets closer to one as income increases if the self-support value is constant.) But as pointed out in Smith, a child's needs do not increase in direct proportion to parental income.

The principles go beyond the division of a child support obligation and speak to the definition of children's needs. Conformance with the principles requires that needs are defined in the context of actual circumstances, allowing comparison between the actual (or expected) spending patterns of a custodial parent and the required and actual contributions of a noncustodial parent. The principles do not prohibit increasing the standard of living of a custodial household in support of comforts and luxuries of life that are affordable to parents. They do however, necessitate that child support judgments are tied to actual rather than preferable circumstances; to what is true rather than merely convenient or desired.

Child support obligations are determined according to the actual circumstances of a family. Judgments in other parts of a divorce decree such as property division, spousal support, tax consequences, custody and visitation, and special medical arrangements contribute directly to the ability and capacity of parents to provide and to the manner in which they fulfill their obligations, and are therefore relevant to the determination of child support.

The principles are not directly linked to assignment of custodial and noncustodial status. But the decision to assign unequal time with children can have a profound effect on actual family circumstances and therefore on child support awards. Contrary to the view that elimination of equal duty levels the playing field in recognition of circumstantial differences, recognition of equal duty requires an unbiased accounting. Because the duty of both parents to support is equal, it must be through actual circumstances that appropriate award amounts are decided. The equal duty principle maintains the objective focus on meeting children's economic needs in a way that is appropriate to family circumstances.

When the child's needs have been met, the state's business in assigning obligations is through. [Alapaha Judicial Circuit, 2002] This does not mean that the state has an interest in forbidding either parent from making choices that provide children with "extras." It means that choices are distinct from enforceable obligations even when they involve care of children. There is a limit to liability for the purpose of ensuring appropriate child support, beyond which lie the arbitrary choices that only the parents themselves are allowed to make. Both parents have an equal duty to provide, as well as an equal right to make choices that are not driven by necessity or limited by their own ability and capacity. Based on the implied contract standard however, custodial household standard of living may increase through payment of child support. The increase is restricted to what is reasonable in the context of actual family circumstances. Such increases must be directly relevant to child support and must not violate the equal duty principle.

It has been shown that there is direct correspondence between the principles and the purpose of a child support award and the context to which the purpose is applied, and that they are useful for continued development of a more detailed child support decision theory. The critical step of detaching principles from political choice and judicial decisionmaking has been successful. The three principles defined here are proposed as a starting point for scientific development of child support decision theory.

Conclusion

The current trend of treating private child support decisions as social policy has divested the courts of their role in "balancing the equities" in full view of individual case evidence, forcing greater dependence on child support formulae. Despite the existence of various mathematical models, there is at present no established science of child support decisionmaking. Federal reforms forced presumptive use of formulae, and an indeterminate statistical approach filled the gap. State review committees are struggling with the task of ensuring that guidelines yield appropriate results. They face the same riddle as parents who challenge guidelines. The quality and value of review is dependent on detailed definitions and analytical tools that are currently unavailable.

The intermediate statistical approach has been eliminated from the search for a scientifically valid child support decision theory. Economic studies have been unable to determine the cost of raising children from family spending data and nothing confines analysts to just and appropriate results. The legal reasoning that supports the statistical approach depends on ecological fallacy and forces the objective of appropriate individual decisions into the political consensus process. Refining and balancing stereotypes in an effort to achieve a fair standard is impractical. A different approach is needed.

This paper aims to put child support decision theory on a scientific footing. The best source of previous analysis of child support decisionmaking has been identified, and a set of principles has been derived from that work. The implied contract approach developed in the courts through application of statutes that left judges to determine appropriate child support awards from what is true, implied by established relationships, and appropriate to circumstances.

To have merely relied on case law would have been insufficient. Courts were, even in traditional law, subject to variations in statutory language. Analysis by appellate courts under traditional law sought to preserve traditional legal process; leaving room for trial courts to exercise discretion in individual case decisions. They were concerned about the coercive power of guidelines and their potential to interfere with the course of justice. (In particular, see Melzer and Fitzgerald.) Legal context is also important in judicial judgments. The Alapaha Judicial Circuit was particularly restrictive when considering the limit to government interest, while other courts could more easily consider the "comforts and luxuries of life" in relation to an implied private contract between parents and children. Nonetheless, there is sufficient clarity and uniformity from different courts in different states in expressing what are described herein as the implied contract principles to conclude that they originated in traditional case law.

The final step taken in this paper was to detach scientific child support decision theory from the political and judicial world. It was shown that there is direct correspondence between the implied contract principles and the purpose of a child support award and the context to which the purpose is applied. Therefore, the principles are not dependent on statute and judicial interpretation. It was also shown that model requirements and specifications can be deduced from the principles, illustrating that they are useful for development of a more detailed child support decision theory. The critical step of detaching principles from political choice and judicial decisionmaking has been successful and the three principles are proposed as the scientific basis for child support decision theory.

The implied contract is a very strong candidate as the best approach for developing the most comprehensive child support decision theory. The three principles provide a rich foundation that must lead to equitable results. Guidelines that conform to the implied contract standard must satisfy the requirement for appropriate child support awards. Requiring consideration of "all relevant circumstances" in each decision is also an invitation to shape a single unified theory that is applicable in all circumstances in every case. A goal statement corresponding to the implied contract principles can be stated as; to award equitable child support that is appropriate to family circumstances; which is so generic that it may be suitable in all countries where child support is awarded. Because the principles have been removed from politics and restated as scientific principles, continued development of child support decision theory and its applications may more easily include international participants. Except in application involving state entitlements, familiarity with local law is not required.

Demonstrating that it is possible to derive a theoretically sound solution from these principles requires development of a detailed logic and mathematics of child support decisions that is consistent with the principles. In the context of a more detailed mathematical model, specific elements such as cost are better defined. An environment already exists in which the application of a decision theory can be subjected to rigorous evaluation. Some work has already been published that demonstrates that child support guidelines can be objectively tested for equity. Much published work demonstrates objective testing of decision principles is generally possible. Decision theory and decision systems are established areas of academic and practical interest involving experts in many fields. Work will be needed to design tests and validation procedures that are specific to child support decisions.

In addition, weaknesses in guidelines – even when properly based on sound theory – will need to be clearly identified so that they can be understood by legislators crafting child support law and courts that administer the law so that the technology can be applied appropriately. The mode of application of guidelines should not be presumed or overly ambitious, but designed to fit the actual of the state of the art.

Dependence on child support formulae has made pursuit of a scientifically valid child support decision model essential to maintenance of justice. In order to remain on a scientific footing, the continued development of theory and mathematics must be subject to scientific scrutiny and process; free of political choices and pressures. In order for child support decision theory to become science, it must be treated as science.

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Georgia DHR v. Sweat (2003) Georgia Department of Human Resources v. Sweat et al. (Decided by the Georgia Supreme Court, April 29, 2003)

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In re Marriage of Hering, 84 Or App 360, 733 P2d 956 (1987)

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P.O.P.S. v. GARDNER, 998 F.2d 764 (9th Cir. 1993), Ninth Circuit U.S. Court of Appeals No. 91-36118, D.C. No. CV-90-5344-RJB, P.O.P.S. (Parents Opposed to Punitive Support)

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RFFLC (1995) Article 81 of the Family Code of the Russian Federation No. 223-FZ of December 29, 1995 (still applies a percent-of-income formula, see RSFSR, 1969)

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