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."