Richard C. Weiss
514 Heritage Court South
Auburn, AL 36830

March 2, 1999

Richard H. Dorrough, Chairman
Child Support Enforcement Committee
Administrative Office of Courts
300 Dexter Avenue
Montgomery, AL 36104-3741

Dear Chairman Dorrough:

On behalf of the Alabama Family Rights Association (AFRA) and National Congress of Fathers and Children (NCFC), I am writing you and members of the Supreme Court Advisory Committee on Child Support Enforcement in strong opposition to the Administrative Director of Courts (ADC) recommendations to update the schedule of basic child support obligations based on research contracted to Policy Studies, Inc (PSI) .

I am particularly concerned about the flawed nature of the PSI research and its biased methodology. Specifically, data was not included from the state of Alabama, despite the proposed application of this data to economic realities in Alabama in support of child support revision. Because the data generated by PSI cannot be shown to be representative of demonstrable economic conditions in this state, it is irrelevant. Secondly, there is no consideration at all of the expenditures and fixed costs of noncustodial parents in support of their dependents while in their care (this sometimes involves almost 40% or more total parenting time). Thus, the recommendations are severely biased toward further rewarding the custodial parent while unfairly discriminating against the noncustodial parent who is already penalized in the form exorbitant flat taxes on his or her disposable income.

Our associations demand that no action is taken on the PSI recommendations until we are given an equal opportunity to provide an alternate model that we believe fairly depicts the economic realities of our state and that assesses expenditures and costs of both parents in support of their children. We cannot condone any heavy-handed or self-serving policy or recommendation based on the biased and flawed methods used in the PSI studies. If the Committee is unwilling to call a moratorium on proposed child support revisions based on the PSI studies, we are prepared to take the necessary civil actions to demand a formal review of the procedures used by the Committee to determine its recommendations and/or request appointment of a new Committee.

Far more serious than the nature of the PSI studies is the fact that the Alabama Child Support Guidelines, as currently adopted and enforced by the state, are fundamentally unconstitutional, illegal, discriminatory, and immoral. The legality of a state judicial branch of the government legislating and enforcing policy based on any recommendations by the Supreme Court Advisory Committee on Child Support Enforcement is therefore suspect. By the separation of powers principles of both state and federal constitutions, only the legislature can enact legislative policy as laws which are nforceable. The enactment of "rules" such as Rule 32 by the judicial branch of government is an illegal attempt to overrule the legislative arm of government.

The real outcomes of enforcing the Alabama child support guidelines (Rule 32) so far has been to encourage domestic conflict, encourage high divorce rates resulting from a winner-take-all system, and to create an era of fatherlessness that has virtually undermined our society. The lucrative, tax-free cash entitlements guaranteed to custodial parents (mothers in 90% of cases) encourage family breakdown by fostering divorce (initiated by mothers in almost three-quarters of filed divorces). These mothers are rewarded virtually with a second income without any accountability on how it is spent on the dependent children. Coupled with the fact that gender bias in the family court system virtually guarantees mothers the children and most of the marital assets, the entitlement of substantial child support cash payments from the noncustodial parent heavily discourages in many cases the possibility of mediation or family counseling which would otherwise preserve the integrity of the family unit. The noncustodial parent, overwhelming fathers, have to cope not only with marital breakdown and loss of substantial income, but they also are forced involuntarily to suffer significant loss of time with their children. It is no surprise that states with the highest level of child support payments to custodial parents (mothers) suffer the highest rates of divorce, as does Alabama, whereas states with lower child support have considerably less divorce.

I. Case for Unconstitutionality of Alabama Child Support Guidelines:

The Alabama Child support Guidelines are unconstitutional and are therefore being applied against noncustodial parents illegally. According to Goss v. State of Illinois, 312 Fed. 1279 (U.S. Ct. App-Illinois-1963) "State judges, as well as federal, have the responsibility to represent and protect persons for violations of federal constitutional rights." The constitutional rights of noncustodial parents are violated by the forcible imposition of the Alabama State Child Support Guidelines.

Some of the ways these guidelines are unconstitutional or act unconstitutionally include:

1. State law requires a "support" payment to the custodial parent by/from an individual who is divorced or classified as a noncustodial parent, and does not require the same of an individual who is not divorced or not classified as a noncustodial parent (i.e., an absent parent). This practice flagrantly violates the equal protection clause of the Fourteenth amendment of the United States Constitution which in pertinent part provides: "No state shallàdeprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the law." The essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly (Laudenberaer v. Port Authority of Allegheny County, 495 Pa. 52, 436 A.2d 147, 1981).

2. Non-divorced (i.e., "married') individuals with children are NOT required or "monitored" by the government to set aside a percentage of their income for so-called "support."

3. Individuals who were never "married" but live in a state of cohabitation with their children, are NOT required to set aside a percentage of their income for "support."

4. Therefore, the requirement that a noncustodial parent pay to the custodial parent a percentage of income based on his/her status as an involuntary "absent parent" is a discriminatory statute and violates both the U.S. Constitution and the Alabama Constitution.

5. While a state has broad power when it comes to making classifications, it may not draw a line which constitutes an invidious discrimination against a particular class. Levy v. Louisiana, 88 S. Ct. 1509, 391 U.S. 68 (1968). (Note: Blacks Law Dictionary defines "invidious discrimination" as: arbitrary, irrational and not reasonably related to a legitimate purpose).

6. A state cannot foreclose the exercise of constitutional rights by mere labels. Bigelow v. Virginia, 95 S. Ct. 2222, 421 U.SD. 809 (1975). (Note: The Federal Guidelines label the noncustodial parent as "absent parent.").

II. Recommendations for Changes in Current Alabama Child Support Guidelines:

I pray that the aforementioned facts and arguments addressing the unconstitutionality of the Alabama Child Support Guidelines will weigh heavily on the conscience of each member of this Committee and provide cause for concern about the ethics and legitimacy of the Alabama Child Support Guidelines. Nonetheless, I do acknowledge that the immediate charge of this Committee is to review the guidelines and possibly suggest modifications thereof. Still, I urge all members to bear in mind the questionable legality of their agenda and above all to ensure fairness.
Addressing the task at hand, i.e., to improve guidelines where appropriate, I strongly recommend the following measures and revisions, in contrast to
the specific recommendations based on the PSI data. Total child support expenses can be refigured, using appropriate in-state models incorporating total expenses of both parents.

1. Joint physical custody should be the presumption. Reasonable total monthly child support expenses should be calculated according to real and verifiable expenses as defined by both parents rather than imputed expenses figured by the federal government. The former etermination will intrinsically adjust for variations in geography (not considered by the PSI study).

2. Each parent should automatically be assigned responsibility for 50% of the calculated child support. One parent should have to PROVE in court that the other parent is not providing at least half of the adequate funding to meet the basic needs of the children BEFORE the courts against the noncompliant parent order an amount.

3. If the court orders an amount, the ordered amount must be able to meet the common law definition of fair and reasonable and not place the parent in dire financial circumstances. The party for noncompliance will incur only civil, not criminal, penalties.

4. Child support awards based on guidelines, which are excessive, unreasonable and arbitrary, are illegal on their face.

5. The amount awarded as a payment for Child Support shall be based on after-tax earnings and shall be exclusive of overtime or extra part-time employment earnings, or any military benefits including but not limited to rations pay and housing allowance.

6. Any tax-exempt income will not be used in the calculation of income for child support purposes.

7. A weekly child support award that is higher than 20% of net "take-home pay" for a normal 40 hour week is excessive and way beyond the spending of intact families on children.

8. The premise a stated in Rule 32 and adopted by Alabama that "àchildren should continue to receive the same level of support that would have been available to them had a family unit remained intact" is absolutely unrealistic and discriminatory against the noncustodial parent. There is absolutely no provision in the guidelines for financial assistance to the noncustodial parent to maintain the same standard of living for the children while in his/her custody. This is yet another violation of the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. It is flagrantly abused in the methods of the PSI study).

9. Child Support payments must be made accountable by the custodial parent receiving such payment. All child support payments should be earmarked into a separate, identifiable, account or fund for the children from which all payments or withdrawals are specifically labeled as to how and why they are spent.

10. The noncustodial parent should be afforded the first-right-of-refusal to provide childcare whenever the custodial parent seeks coverage of childcare expenses. This will significantly lower calculated family expenses in many instances.

11. No court shall have the authority to base Child Support on imputed or "potential" (inured) earnings unless he court is willing to provide a job that actually pays the "potential earnings" to the party ordered to pay.

12. Child support should be a moral and civil obligation, that is, a lack of compliance shall not be a criminal offense.

I thank the Committee for this opportunity to express my views and concerns regarding proposed child support revisions.

Yours sincerely,

Dr. Richard C. Weiss

Member, Alabama family Rights Association (AFRA) and the National Congress of Fathers and Children (NCFC)

Cc: Bob Maddox

From: "Richard C. Weiss" <weissrl@vetmed.auburn.edu>

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