Here's what's really chilling about this story:
Supporting your child "is a mandatory obligation,
not a fundamental right," the opinion states. "As such, parents have
no fundamental right to allocate support to their children as they see
fit." Gallaher v. Elam, No. E2000-02719-SC-R11-CV (May 2).
If parents have no fundamental right to decide how to
raise their children, then Americans have no fundamental rights at all, and this
whole thing is nothing more than a charade to quell mass revolt.
Robert Muchnick Center for Children's Justice Denver,
CO http://www.childrensjustice.org/
---------- Forwarded message ----------
http://www.abanet.org/journal/ereport/m16child.html
CHILD SUPPORT BATTLE KEEPS COMING BACK Two Defeats Won't Stop Dads' Fight
Against Guidelines
BY STEPHANIE FRANCIS WARD
Two recent cases challenging child support guidelines on constitutional
grounds may have been shot down in state supreme courts, but some attorneys who
represent noncustodial parents say the battle is just beginning, and may move to
federal court. The cases, from Tennessee and Georgia, challenge state child
support guidelines that determine awards based on the noncustodial parent's
income. Both argue the guidelines violate constitutional guarantees of equal
protection and due process.
The Tennessee case was filed by a married doctor who fathered a child out of
wedlock. Dr. Curtis J. Elam, who has three children who live with him, was not
given credit for the amount he spends to support them. Yet he would get credit
if an existing decree required support.
The court said the state has a rational basis for this distinction because
children who live with their parents benefit from the parents' lifestyle.
Therefore, there was no equal protection violation.
The court also found no due process problem, since no fundamental right is
implicated and it is rational to base support payments only on income.
Supporting your child "is a mandatory obligation, not a fundamental
right," the opinion states. "As such, parents have no fundamental
right to allocate support to their children as they see fit." Gallaher v.
Elam, No. E2000-02719-SC-R11-CV (May 2).
The Georgia case, filed by Michelle L. Sweat, a noncustodial parent, claims
that child support guidelines there violate her right to privacy because the
award amount dictates how much money she must spend to support her children.
Also, her suit argues that the guidelines discriminate against noncustodial
parents, who are mostly men. The guidelines are based on the Federal Family
Support Act, her lawyer argued, which was enacted largely to target so-called
"deadbeat dads."
The Georgia Supreme Court held that Sweat has no privacy interest in the way
in which Sweat's child support obligations are determined. Nor is there a due
process violation, the court said, because the guidelines further an important
objective of ensuring adequate support for children. It also found that
custodial and noncustodial parents are not similarly situated, so there is no
equal protection violation.
"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 depends
upon the guidelines to ensure he or she receives adequate financial resources
from the noncustodial parent to assist in raising the child," Judge Leah
Ward Sears wrote for the Georgia Supreme Court. Georgia Department of Human
Resources v. Sweat, No. SO3A0179 (April 29).
Daryl G. LeCroy, who represents Sweat, has filed a motion for reconsideration
with the Georgia Supreme Court. The Atlanta lawyer has two other cases pending
that make similar arguments.
"Our efforts to change guidelines to something that's fair and
reasonable may be in federal court," he says. "I view this as a
process, and people are very reluctant to change."
Similar child support cases are pending in Wisconsin and Minnesota, and
fathers' rights groups have played a large role in advancing constitutional
challenges to child support orders, says Laura Morgan, an ABA Family Law Section
member who co-chairs the child support committee.
"The men's rights groups are so active, they are going to keep pushing
the issue," says Morgan, a Charlottesville, Va., lawyer. "I don't
think the Georgia or Tennessee opinion puts an end to the issue, I think they
are going to keep trying."
Steven F. Wingfield, a La Mesa, Calif., lawyer, says noncustodial parents
have no choice but to take their cases to federal court because state courts are
not treating them fairly. He serves as treasurer of the National Congress for
Fathers and Children, a group that advocates for equal parenting and positive
father-child relationships.
"The way it's working out, the child support ends up being unfair to
noncustodials," Wingfield says. "When you have a situation where the
children are not being shared fairly and equally, it puts an undue burden on the
paying parent."
L. Caesar Stair III, a Knoxville, Tenn., lawyer who represents Elam, says he
does not know if his client will appeal the opinion. He notes that Tennessee is
one of a few states that do not include children without support orders in the
determination of support for other children.
"In Tennessee, we have a race to the courthouse to determine child
support. The first one to the courthouse is going to get more child support than
the second one to the courthouse, and the second one will get less," Stair
says. "If you're married and you have a child, the best thing for your wife
to do is get a divorce and get as much child support as possible."
Wayne Decatur Wykoff, a Knoxville attorney, represents Dee Ann Curtis
Gallaher, the custodial parent who sought child support in the Tennessee case.
"What this opinion really means is that the guidelines are for the
legislature to adjust, and as long as it's rational, they're going to be able to
do it," he says. "I can understand where people would say there's
something wrong with our guidelines, and that may be, but that's for the
legislature to decide."
Stuart Wilson-Patton, a Tennessee assistant attorney general, argued for the
state when it intervened in the appeal and is on a court-appointed task force
that discusses possible changes to the state's support guidelines. One
consideration, he says, is to allow credit for children who live with the
obligor. However, this proposal would only be allowed to set up an initial order
or as a defense against increasing support. It could not be used to decrease an
existing order.
Also, Wilson-Patton notes that Elam's income falls into the state's top 1
percent.
"This is not a hardship situation; this is a guy who can support his
kids lavishly," he says. "Many states would say that on these facts,
this guy didn't need a break anyway."
