To: "David Levy" <crcdc@erols.com>, "Richard C. Weiss" <weissrl@vetmed.auburn.edu>, <davidlevy1@juno.com>
Cc: <childrens_rights@egroups.com>, "Ignatiadis, Arthur" <Arthur.Ignatiadis@HSV.Boeing.com>
From: "Bill Wood" <bill-wood2@worldnet.att.net>
Date: Sat, 22 Apr 2000 19:30:45 -0400
Subject: [childrens_rights] Re:  Alabama and David Levy

A Position Paper

Introduction:

Child Support has become a political hot potato and "sacred cow" to our government and its mouthpiece, the news media.  The issue of "child support" is rife with lies, dis-information and just plain propoganda.   The issue has been defined by feminists to the point that a clear and honest discussion will bring screams and wailing from the leftists that we are attempting to "steal" money from children.  In actuality the victims are the parents (both male and female) who are forced to transfer more money than is reasonable under the guise that it "...is for the children."  The use of current guidelines to determine how much money is to be transferred from one parent to another is simply government sanctioned thievery encouraged and approved by immoral and corrupt politicians, lawyers and judges.

Domestic Relations law (Anti-Family Law) is the only area of civil practice where a financial award is NOT based on fact.

1. Position Statement:
   
   It is the view of this writer that any court/judge who "awards" custody after a divorce to one parent and makes the other parent a visitor has violated the clear constitutional rights of the citizens of this country. No court has the authority to terminate parental rights and responsibilities without a showing of good cause, based on real evidence that proves beyond a reasonable doubt that one or both of the parents is incapable of performing their parental duties. Divorce alone is not sufficient cause to grant custody to one parent and remove rights from the other. It is an act of evil beyond description for the state, via its judicial branch, to allow two parents to walk into court, and force them to leave as one custodial parent and one visitor and assert it has done so "…in the best interest of the child."
   
   
2. Introduction:
   
   Why does this paper even need to be written? Because over the last dozen or so years we have allowed feminist/socialists to shape and define the public discussion on this issue. What we have learned in the last few years is that this group has lied, not only about fathers in general but economic facts specifically. The general public, which has relied upon a leftist leaning media to provide them information, has swallowed hook line and sinker the inaccurate portrayal of men as having more money they are not willing to transfer to the other parent, thus the term 'deadbeat dad' has become common. Social policy on this issue has been shaped by socialists, feminists and legal theorists and not economists. When in reality, a proper and reasonable child support award is a purely economic issue.
   
   We want our elected officials, and anyone else who has an opinion on this issue, to understand that we support the view that it is the parents responsibility to support their children. There is a difference however, between child support (which is what parents spend on children) and the arbitrary and capricious use of child support guidelines to determine how much money will be transferred from one parent to another (i.e. the child support award). The use of child support guidelines has become a pre-emptive presumption of need without any factual basis. We have Superior Court Judges in Georgia who have ordered parents to pay more in child support than they had agreed upon in Settlement Agreements. Our judges have determined that the guidelines are smarter than parents. Therefore, this position paper is presented to provide information in an attempt to persuade all states to adopt child support guidelines which meet the criteria presented here. Comments are welcomed.
   
   
3. Terms:
   
   Terms are important, we must choose our use of terms with care as they shape the way in which we present our arguments and points. They also determine how we are perceived by those trying to understand the issues. It is imperative that the terms which are presented on this issue be those that cannot be misinterpreted. The following terms are those which must be used when describing what a child support award should be:
   1. Fair - We support the adoption of child support guidelines which are fair. Child Support guidelines, when applied, must not result in a child support award which is an onerous burden on the obligor, nor should the award be an unjustified benefit to the obligee (recipient). (This is part of the "benefits and burdens" rule which is a part of constitutional law as it relates to equal protection.)
   2. Reasonable - We support the adoption of guidelines which are reasonable. Guidelines which are reasonable must hold up to examination by economic experts and juries and be void of bias and special interest group mandates.
4. Economic Issues:
   1. Guidelines must be based on valid economic studies of what parents 'typically spend on children' as they relate to particular income groups.
      
      Marginal cost v. per capita cost - When examining economic studies, note if they use the above terms when describing money spent on children. Marginal costs represent true costs, whereas per capita costs is simply dividing an expense among the number of members in a household. Any study which uses per capita costs as the basis for a figure of spending on children will show amounts higher than reality in all associated costs.  Most government based reports use the 'per capita' model which is not an honest reflection of reality.
      
      EXAMPLE:
      An example of a marginal cost relating to the housing "costs" of a child, would be the difference in cost per month between the rent of a 1-bedroom apartment and a 2 bedroom apartment. If this difference were $100 a month, the child’s housing costs would be $100 a month plus a small percentage increase in utility costs.
      If the economist were using per-capita costs as the model, the monthly rent of a 2 bedroom would be divided among the residents, in this example a child and his mother. This would reflect (assuming a rent of $750 month) a housing cost to the child of $375 a month plus ½ of all utilities.
      
      The use of the per capita model in the above example results in an overstatement of housing costs of over 300%. Child support guideline models, which are based on per capita spending economic models were designed to result in a higher than appropriate awards to the custodial parent.
   2. Basic Needs - I know this issue is going to be controversial. The government does not interfere with intact families as long as they meet the basic needs of their children. Basic needs have been defined as food, clothing, shelter and education. No exception to this rule of non-interference in parental rights exists in law or history. A court ordered award of child support or a child support guideline which goes beyond meeting the basic needs of children is a clear violation of the equal protection clause of the U. S. Constitution and most state Constitutions. It is nothing but the forced transfer of funds, which any parent has the right to retain for discretionary spending, and they would have this right if they were not divorced.
   3. Overtime earnings. Overtime earnings are not to be considered when determining a child support award. As overtime is neither mandatory or guaranteed to anyone. A child support award shall be based on the normal work week, exclusive of any overtime or extra job earnings. The earnings of both parents shall be considered and the custodial parent shall be held to the same standard as the non-custodial parent.  Just as courts require the non-custodial parent to be employed at a level commensurate with his abilities, the same shall be required of the custodial parent. 
       
   4. Standard of Living - This is another economic issue which will be controversial. Standard of living cannot be defined in a consistent or realistic manner. Economists use different formula to arrive at a definition of Standard of Living. The term is usually used by social activists, usually the gender-feminists who support maternal only custody, in describing a child support award as a method of maintaining the "standard of living" the child had before divorce. This is not possible, and does not deal with reality. It is not possible for two households to be supported on the same income, which, more than likely, barely supported one. The use of a "standard of living" definition of child support is a way of claiming income entitlement for the custodial parent of the non-custodial parent’s income. This has not been the traditional legal definition of child support. The needs of the child is "child support". The use of the "standard of living" term in describing child support is an attempt by gender feminists to attach the income of the non-custodial parent as a right, and receive a child support award far beyond what is normally spent on children in a specific income range. This an attempt to rename alimony 'child support.' Alimony is considered as income and must reported as such.
   5. Parenting time - It is economic dishonesty for any child support guideline to not take into account the time the child spends with the non-primary custodial parent. A day is a day. Both parents have costs associated with their time spent with their children. Since the Federal government does not recognize any way to divide the tax deduction, it is inherently unreasonable that the primary custodial parent gets away without having to foot any expense for the time the child spends with the other parent.
      
      The only fair way to address this issue, is to have the child support obligation be offset by the amount of time the child(ren) spend with the other parent. For example, if the child spends 20% of the time with the non-primary custodial parent, the child support award is reduced by 20% AND the primary custodial parent pays to the other parent an amount equal to that 20%. This would be an "offset" award not just a deduction from the award.  If government were to 'honestly' define child support as for the child, the money would follow the child based on his/her time spent with the other parent.
      
      The fedeal government, in order to be fair, must find some way to divide the deduction for children among both parents.  Or better yet eliminate entirely the Income tax.
   6. Income entitlement - This is a term used to describe those child support guideline models which are not based on any economic studies. It is the desire to convert historical alimony into child support. It is supported by the gender feminists, has no historical or economic basis and is essentially a Marxist/socialist view of entitlement to income. States who have adopted guidelines that strictly use a percentage of income of the obligor, (gross or net) have adopted the income entitlement point of view. Those states are: Georgia, Nevada, Minnesota, Wisconsin and Tennessee.
5. Legal Issues
   1. Child Support Guidelines are currently a Rebuttable Presumption - "In the law of evidence, a presumption which may be rebutted by evidence. Otherwise called the ‘disputable’ presumption. A species of legal presumption which holds good until evidence contrary to it is introduced. Beck v. Kansas City Public Service Co., Mo.App., 48 S.W.2d 213, 215. It shifts burden of proof. Heiner v. Donnan, 285 U.S. 312, 52 S.Ct 358, 362, 76 L.Ed. 772. It gives particular effect to certain groups of facts in absence of further evidence, and the presumption provides a prima facie case which shifts to defendant the burden to go forward with evidence to contradict or rebut the fact presumed. Gulle v. Boggs, Fla., 174 So.2d 26, 28. And which standing alone will support a finding against contradictory evidence." Black’s Law Dictionary, Sixth Edition, 1990.
      
      It is part of the Federal code that child support guidelines be a rebuttable presumption, (45 CFR 302) this in itself is not a problem, (even though in actuality it creates a legal fiction) the problem is what is the basis for the presumption. A presumption must be based on facts which can be pointed to and analyzed by independent and unbiased experts on the issue. In the matter of child support guidelines, the underlying facts upon which the guidelines are based are, quite frankly, unknown. It is impossible for one to refute in a court of law a presumption, when no one knows, or is willing to defend the presumption and its basis in fact. Thus, the child support guidelines are not rebuttable, they are accepted as a non-rebuttable presumption. States have gone to great lengths to hide this from their citizens, and have ignored the federal mandate that they conduct economic studies to determine if the application of the guidelines result in an appropriate award of child. (45 CFR 302.56)
      
      According to an American Bar Association Report on Guideline Reviews, few states bother with doing the required economic research:
      
      "Finally, States are required to review their guidelines every 4 years to evaluate their adequacy and consistency. Reviewers analyze case data related to the application of and deviations from the guidelines and consider economic data related to the cost of raising children. This evaluation examined State review efforts with regard to review procedures, review issues, and reviewers' recommendations. The findings were that only approximately one-half of the States appeared to have followed Federal requirements to analyze case data and to consider economic data regarding the cost of raising children."
      
      We thus find it is immoral for the government to seize assets, take drivers and business licenses, confiscate income tax refunds, imprison its citizens without due process and violate other Constitutional rights of its citizens when it (the states) have failed to do the proper economic research to determine a proper child support award based on economic facts relating to the costs of raising children.
   2. Best Interest of the Child - This is one of the legal catch-all phrases which has led to more harm to parents than good. From a legal stand point it is the basis of all "family law" yet it cannot be defined, is not codified and can mean anything the "trier of fact" determines it means. It is a positive statement with negative results. If any parent is not looking out for their child’s best interests, they have no business being a parent. It is not the state’s responsibility to determine what this is, unless it can show by proof, beyond a reasonable doubt, that a parent is NOT acting in their child’s best interest.
      
      We would like to know how it is in a child’s best interest to see one parent unable to support themselves, as many child support guidelines do. It is hardly in the child’s best interest to see one parent financially devastated as a result of a divorce while the other gets along just fine.  And despite so called 'studies' from the feminists, the custodial parent does fairly well after divorce.
   3. Length of obligation and termination- A child support obligation should terminate when any of the following occurs:
      1. Age of Majority reached (Should be 18) This is the age in the state upon which the person is able to enter into binding contracts and will be treated as an adult in the court system;
      2. Completion of High School (Secondary education) - if the age of majority is reached prior to completion, obligation shall continue until graduation or the year in which the child should have graduated;
      3. Becomes emancipated - This should be automatic. You should not have to go back to court and prove emancipation. Put the burden of proof that the child is not emancipated on the custodial parent, the decision to have a child and keep the child is an act of emancipation;
      4. Becomes a fugitive from justice as a juvenile;
      5. Is incarcerated as a juvenile, or;
      6. Enters military service prior to age of majority.
   4. College Education - Good parents, to the best of their ability, will help their children with obtaining a proper college education or technical training. It is not anyone’s right to go to college, the state does not force married parents to send their children to college. This is not an issue for the state to address.
   5. Ability to Pay - If sound economic principles are the foundation of a reasonable and fair child support guideline, then this issue is non-existent.
      
      However, if unforeseen events occur such as a job loss, injury or health problems, no-one should have to go back to court and beg for a change in the obligation amount. Such an issue should be settled with open, honest and fair mediation, within 30 days. Child support must be reality based, things like this do occur, and no one should be harmed if things are not going well. Current child support laws allow a person to be taken from the hospital to jail, this serves no one and shows the government has no soul.
6. Conclusion
   
   After spending years researching this issue there is only one child support guideline which fits all of the above economic criteria. It is the child support guideline formulated by Donald J. Bieniewicz with others. This model child support guideline was published by the U.S. Department of Health and Human Services in a publication entitled "Child Support Guidelines: The next generation" in Chapter 11. To obtain a copy of the federal publication, phone (202) 401-9383, which is the Office of Child Support Enforcement’s Child Support Reference Center, located at 370 L’Enfant Promenade SW, Washington, D.C.20447. There is no charge for the publication, entitled "Child Support Guidelines: The Next Generation", as long as supplies last. Copies of the guideline itself as published by the government are available from Children’s Rights Council for $5.00 for CRC members, and $10.00 for non-members, including shipping and handling.

CRC
220 "I" Street N.W., Suite 140,
Washington, DC 20002

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