This text cites Appendices A & B by Roger Gay, Appendix C by Don Bieniewicz,
And Appendix D by Jim Johnston.

*******

Thanks to Nick Young, head of the Virginia Division of Child Support Enforcement (DCSE), I was named by Secretary Claude Allen (Health and Human Resources)to serve on the Quadrennial Child Support Review Commission, as a representative for non-custodial parents. Although Mr. Young assured me that said statutory requirements as to the panel's constituency had been met, I would be appointed if I so desired because I had been a non-custodial parent for almost three years. Despite my lack of expertise to adequately assess this issue, and my suggestion that a better qualified person be named to represent non-custodial parents, I was told that the additional position would not be created if I chose not to accept.

When I first spoke to Nick Young, I was intent on getting information about NCP'S custody and child support issues. Because he wanted to ameliorate the
Contentiousness that his employees face in their child support enforcement efforts, he wanted the same crucial information. I suggested a survey of the mostly men non-custodials as to why they are so resistant to paying child support, so disgruntled with the courts and with DCSE. For reasons yet to be fully articulated, there has been no survey. Even though Nick Young acknowledged that he knew of the study that found when non-custodials get adequate parenting time, CS payment goes to 90% or better, no survey is in the works to explain that fact. The significance of the need to couple any discussion of child support with custody was denied by the Quadrennial Panel. So, the contentiousness persists.

My inauspicious start unfortunately has set the tone for my term of service on the commission. Regretfully, I must also report that Virginia's child support system is fundamentally flawed ; the process for its review (as mandated by federal law) has been conducted in a manner so questionable as to cast doubt on its credibility. As a result, our state government's integrity, regarding its dealings with this issue, must be examined. Many join me in concluding that Virginia's CS system contains such basic flaws that our Commonwealth is being put in the uneviable position of committing criminal Wrongdoing in violating the civil rights of its own citizens by incarcerating them without due process of law. Regarding the Commission itself, it must be noted that, by virtue of the the Director of DCSE deciding its make-up, conflict of interest concerns are both evident and, also, reflective of much larger improprieties.

page two

I. Comprehending Virginia's Guideline : Help From Unexpected Sources

Despite my lack of experience in CS guidelines, no one on the panel was assigned to show me what to do. No one from DCSE offered to educate or inform me. Indeed, other than congratulatory letters from the Governor, my state Senator, and Delegate Whitt Clement, I had little to feel confident about other than Nick Young's encouraging remark that I would do "just fine".

In fact, since the first meeting had already taken place in December, 1998, before I was 'appointed', I had more than just a little catching up to do. I requested a highly regarded text by Attorney Laura Morgan, entitled "Child Support Guidelines", available for a little more than $120. Nick Young had DCSE purchase the text as a study guide for me. Prior to the next meeting, I had received it.

Also, I contacted others who have an interest in the guideline. One is a Policy professional whose firm had studied child support guidelines for more than ten years. He knew why a guideline worked and why it didn't. He had published papers on various states' guidelines that included both criticisms and constuctive suggestions for improvement.

When I asked for his help with my assignment to review Virginia's guideline, he accepted immediately. For hours each day for months, he was to be my mentor. The more he shared, the more I learned about my task. He knows all of the significant child support models and their creators, including Virginia's. His name is Roger Gay.

In reviewing the child support guideline used in Virginia, my most serious concern was with the role of Dr. Robert Williams of PSI, the proponent and designer of Virginia's version of the Income Shares Guideline. I soon found reason to question Dr. Williams' credibility. I had reason to believe that his company's participation in CS guideline determination and the profit it derives from its child support collection division points to an obvious conflict of interest. If Dr. Williams designed the numbers of our guideline, his proposals' higher numbers meant more collections. More collections meant
that Dr. Williams, the entrepreneur, would add to the millions of dollars he had made as a collection service for many child support offices. (A Denver, Colorado newspaper noted Williams' achievements as a shrewd businessman in the entrepreneurial field of child support guidelines and collection.)

My task, I figured, was both to honestly appraise how equitably Williams' Income Shares method determined child support awards and, also, to examine his approach to the selection of its associated numeric table values.

page three

II. The Rush To Report v. The Need to Repair to the Guideline

At my first meeting, the panel's second, I became aware of one startling fact : most panelists assumed that our task was not so much to critique the existing guideline as to vote on the proposed changes to it presented to us by PSI and Dr. Williams. To this day, I can only guess that the reason our panel understood their task this way is that an 'update' was either offered by Dr. Williams or was solicited from him. I must suppose that, every four years, his offering heads the agenda.

Quickly, it appeared to me that Dr. Williams would dominate our focus. I sensed that we were being asked to rubber stamp both the continued use of the current guideline, designed by Dr. Williams, and, also, the revisions he had proposed to it. What I heard being presented was a schedule of what we had to do to meet our goal of getting a report to the General Assembly. Our meetings had to be oriented toward a completion of task by June or July of 1999. To that end, we were told, we would have a telephonic meeting with Dr. Williams to discuss and examine his newest proposal.

Only I was concerned about that prospect. If we were to meet with Dr. Williams to discuss his proposal, how was I, a novice, expected to know enough to ask important or critical questions? What I suspected was that many others in the room needed expert assistance to critically assess Dr. Williams' proposal.

By this time, I had discovered that, although thirty odd states had adopted Guidelines designed by PSI, the serious policy experts in the field regarded Dr. Williams as unqualified and saw his Income Shares package as seriously flawed. (see Appendix D)

I moved that we have some expert, other than Dr. Williams, attend our meeting to assist in our critique. Although there was some resistance to that idea, I pointed out that, even in a court of law, an opposing point of view must be presented. All agreed and my motion passed. I assumed one of the three or four consultants I had suggested would be invited. I left the meeting hoping we were back on course.

III. Tilting at Real Windmills : Divining our Panel's Purpose

By the next meeting, I had become more informed about guidelines. Although I still felt overwhelmed, Roger Gay was leading me through the maze of it. I knew enough to realize that our Commission was going about its task in a highly unprofessional manner.

page four

No committees were assigned to cover specific areas or to answer questions that the last panel had reported out (though many of the panelists had been members of previous panels). It seemed even more strange to me that such an important review of a guideline that affects almost half of the citizens of our state was so unbalanced with regard to representation of those who are paying support. If we were charged with providing an honest evaluation, why weren't more payers of child support present on our panel?

That question was not answered. Instead, we spent a troublesome hour reconstructing the minutes from the previous meeting because the secretary (and the notes) were absent.

I moved that subsequent meetings be tape recorded.

Although one panelist opposed that because the public might try to take what was said out of context, I argued that our meetings were open to the public, and that, therefore, we had nothing to hide. The motion passed.

A telephonic device was set up for our teleconference with Dr. Williams. I noticed that two strangers were in attendance. Later I was to find that they were our invited experts, Attorney Richard Byrd and Attorney Laura Morgan (author of "Child Support Guidelines"). When I asked about the people I had suggested, I was told to refer to the minutes of our last, untaped, meeting: my motion had not named them specifically (Dr.Greg Palumbo, Don Bieniewicz, Joe Johnston, Murray Steinberg).

Although I was familiar with Attorney Morgan's book, I only knew of Attorney Byrd because insensitive remarks he had made regarding NCP'S had been published. Though I had read those remarks, I knew little else about him. Eagerly, I perused the handout he had prepared for us. It was the text of his critical report about Dr. Williams' proposal. While reading it, I noticed that he thought we were being misled by Williams' reliance on numbers that were indefensible. His report strongly recommended we vote down Williams' proposal. I made a motion that passed that allowed ....both Attorneys Byrd and Morgan to question Dr. Williams.

Repeatedly, we heard Dr. Williams say that he could arrange the numbers and Their determinants however we wanted. In effect, he asked what we wanted them to say. Then Attorney Byrd confirmed his own findings based on Dr. Williams' answers to his questions. Attorney Byrd told us that it was not possible for Dr. Williams or anyone else to arrive at the guideline's numbers from the data used. In effect, Attorney Byrd said the numbers were based on nothing more
reliable that alcohol and tobacco purchases.

page five

Despite Attorney Byrd's criticisms, a motion to continue using Dr.Williams' Old guideline, was passed. An obvious question was: how can we, as panelists, possibly endorse any guideline that Dr. Williams had created, especially the one now in use, when we knew, as Attorney Byrd had pointed out, that it was faulty and flawed from day one.

Attorney Morgan had little to add. She was not a critic of Dr. Williams. Though her text cited one of our panelists as having provided useful ideas, what concerned me was that she had not dissected Dr. Williams' work. In fact, her Child Support Guidelines states her reliance on ......Robert Williams, Ph.D., of Policy Studies, Inc., on who work I have unabashedly built. The italics are mine but the meaning is clear: Attorney Morgan is no critic of Williams.

IV. Who's guilty of what?

I soon realized that the Quadrennial Review was more than just off purpose. What we were very likely doing was supporting the criminal act of the state
wrongfully jailing parents. To address that concern, I prepared a paper, accompanied by supporting documentation by several noted authorities. It was written after the public forum, sponsored by the Quadrennial Commission, that attracted almost twenty speakers. They came to voice their concerns about the guideline's abuses and how it impacted their ability to parent their children. Their objections compounded my concerns about our state's fundamental infractions of the civil rights of non-custodial payers. Among them were :

1. The blatant lack of definition in the Code as to what child support is and the lack of any set principles upon which it is awarded. This lack of a rational basis:

a. makes it impossible to fulfill the federal reqirement for review because our panel can't determine what a 'just and appropriate' child support award might be, and

b. violates the federal requirement to allow rebuttal in all cases since parents have no legal basis to challenge the presumptive guideline

2. The nebulous quality of the guideline's numbers, in that,

a. they are derived from faulty logic and inappropriate data, and

b. there is no policy (no definition) in place that allows for a determination that resultant rulings are 'just and appropriate' in 'each case', and

c. as a result, the obvious denial of due process because it is impossible to rebut such a guideline (see Appendix for federal and state statutes)

page six

Because the panel continues to find the guideline is in accordance with Federally mandated guidelines, they are a party to the incarceration and
criminalization of parents who are imprisoned for failure to pay child support when the awards themselves are punitive and inappropriate.

What Dr. Williams created in Virginia's Income Shares approach disregards the NCP'S 'ability to pay', a long held traditional standard. In place of one's ability to pay, Dr. Williams has substituted one's income as a basis for determining child support. In his testimony to the Commission, he could not defend the arbitrary increase in certain categories of the child support table. His numbers were baseless.But that was just beginning of the problem. At the heart of it is this:
appropriate child support cannot be numbers-based. It must be policy-based. Child support is not about Income Shares. However, nowhere in our state's Code is child support defined explicitly. Therefore, no number can possibly be the correct one. Every citizen who is made to pay an inappropriate child support award or who has been imprisoned for failure to do so has had their constitutional rights violated. As long as our guideline is numbers driven rather than policy driven, an appropriate child support award cannot be made.

V. Confusion Reigns, Integrity Loses : The Mix of Spousal Support with Child Support

Although I presented appropriate child support definitions (based on traditional statutes and long held case law) for consideration at the June meeting, I did not move that they be accepted until the July meeting, after the panelists had had a month to study them. I wanted to be able to defend them as reasonable and consistent with prevailing thought and legal precedents. What follows are the three definitions and the defenses of them that were offered.

#1. Child support is for the care and maintenance of children.

Although this idea is supported by decades of case law, the actual definition cannot be determined by the judiciary nor by an administrative agency. It is the task of the legislature to define it so that child support awards will be : for the maintenance of children, 'just and appropriate', and rebuttable. To determine whether the state's guideline is being appropriately applied, there must be a policy, in the Code, to provide for that. Just as we cannot say what the guideline is for, we cannot decide that it is equitable unless it is defined.

page seven

#2 Both parents have an equal duty to support their children.

This is an age old concept that Williams cited in a 1987 report as an important component of any definition of child support. Its origins stem from traditional case law. It means that both parents have an equal duty to support their children so a court has no basis for discriminating against either parent. See "Family Law and the Fifty States: An Overview" by Doris Freed and Timothy Walker, Family Law Quarterly, Vol. XIX, No. 4, (Winter1986), pp. 331-442, 411.

# 3. All relevant circumstantial information may affect the amount of the award.

A number of questions must be answered in each case : where is the support Coming from? Is the formula flexible or is it so rigid as to restrict and constrain one parent while liberating the other, i.e., is it 'just and appropriate' for both parents? Does it provide incentives for one parent to break up their family ?

Does it consider marital debt, legal fees, self-support reserves, contributions of health insurance, education costs, and any other factors prior to determining one's ability to pay ? Does it consider prior child support awards to both custodial and non-custodial parents? Does it consider next families and their offspring? Does it factor in the next mates' impact on child rearing costs for both custodial and non-custodial parents?

Does imputation seem just in its calculation if it is not applied to both parents ? Should imputation create situations that chain one parent to a certain job or avocation while freeing the custodial parent to move around at will ? Even Dr. Williams did not think so. If the child support formula cannot be applied to changing circumstances, what connection does it have to reality?

********

When first presented, these three principles were met with comments such as "those already exist in our Code" or "they are redundant" or "what do they mean?" Two panelists were so certain they were already imbedded in our state Code that they offered to find them and report their whereabouts at the July meeting. Such a revelation never materialized ; critical definitions regarding child support cannot be found in our Code. Although it is a legislative requirement to determine policy (rather than a judicial one), our General Assembly has yet to do its work to provide policy that will generate the guideline's numbers. So I moved ....that we accept the changes to the Code as far as definitions of child support are concerned. (see Appendix B for more about the case for definitions)

My motion did not receive a second.

page eight

VI. Is it Swiss Cheese or Income Shares?

As it is, what allows our state's judiciary to justify Williams' Income Shares method and thus continue to award child support based on the guideline's numbers is their marriage to the concept that child support must include a standard of living component for the child based on the lifestyle and living conditions of the child as of the time of the breakup of the marriage.

In reality, however, no one guarantees an in tact family that their standard of living will not be impacted by economic downturns, whether local, national, or marital. Divorce and separation are impactful to everyone. When Income Shares allows one parent to be drained to ensure that the lifestyle of the custodial parent (and the child) is maintained or improved, the impoverishment of the NCP is shared by the child, too. Shackling the child with an impoverished parent impoverishes the child. That is true whether that parent is one of those low income NCP'S who is jailed for non-payment due to his inability to pay (there are virtually no women who are jailed for this ) or whether the NCP payor is a professional with a five or six figure income.

When I suggested that higher child support automatically demanded of higher Income parents was evidence that our guideline includes spousal support in its child support numbers, I was told by one of the judges that that was due to the fact that men shouldn't make so much more money than their spouses. I reeled from the illogic of that remark when the same judge later commented on spousal misbehavior as being a strong indicator of whether that judge would award spousal support. It was easy to see that, because our Income Shares model skyrockets higher income child support awards, the behavior of the custodial parent does not matter.

When one panelist moved that child support awards be calculated on pay from
a forty hour week, I seconded the motion. The rest of the panel strongly reacted to it. The same judge emphatically suggested that figures needed to be based on what was being earned at the time of the divorce, even if the NCP was working overtime. I protested, saying that many parents had been working overtime because they had wanted to provide more for their spouses and children. By failing to consider the entirly new set of logistics following
divorce, inappropriate and often impossible CS amounts were being awarded.
Weekend and evening overtime, for example, must be discontinued when it conflicts with a new visitation order. If a parent is made to choose between working overtime or visiting their children, an unjust situation is created. Too, the custodial spouse is given an incentive to leave when their soon-to-be NCP is at the top of their earnings bracket.

What Income Shares does not account for is the cost to the child of the
damage done to the paying parent when awards built on inflated earnings cripple that NCP. Nothing is left for the child when a child 'visits' his or her paying parent.

page nine

This is especially true of low income non-custodial parents. Many of their
children would be forced to visit their parent in prison. Such a standard of living is not what the child had ever been accustomed to. However, the panel indicated little interest in getting at the facts regarding the imprisonment of low income parents. My motion to gather such data failed to attract a second from a panel that portrayed ithself as child friendly. That image, for me, was shattered because of the irrefutable and weighty data regarding the terrible impact on our children when raised without a father.

I made the following motion:

I move that we ask for a survey to be conducted to determine 1) the number of NCP's imprisoned over the last 41/2 years for CS delinquency (January/95-June/1999) 2) the cost of their incarceration (per diem and legal costs involved) 3) the impact and effectivness of it 4) alternatives to incarceration

Unofficial partial surveys had been conducted. What they revealed was that, in two counties, 25 to 30% of those imprisoned were convicted of child support delinquency. Estimates are that the costs of incarceration per prisoner per year are $24,000. Not one of the low income parents imprisoned earns that. A fraction of that money would be sufficient to reunite fathers with their children. Again, I say 'fathers' because, of the 422,000 cases managed by the DCSE, at least 95 to 96 % of the payers are non custodial fathers. To date, we have not been given an exact breakdown. Estimates of delinquencies in the low income group ranged from 25 to 40 % !

Due to the Income Shares approach, even that figure may be low. Because imputation is usually applied to only the non-custodial parents in our state, many non-custodials who have lost their jobs, who have changed their jobs to lower paying ones, or who have become disabled, are not regarded as members of the low income category. The rigidly and simplisticly applied Income Shares approach and its allowances for one-sided imputation guarantees the criminalization of a sizable portion of the NCP population.

That is not the purpose of child support. Nor should it be. Even Dr. Williams suggests it is not the intent of the child support guideline to criminalilze parents. But it is the undeniable result. That caused me to present another motion which addressed the criminalization of parents. It follows. I moved....that, if it is determined that the guideline, in its present form, is found to be inappropriate and/or illegal, we ask the state legislature to both allow for and to fund reparations to the thousands of wrongly imprisoned parents.

It failed to get a second.

page ten

VII. Who Me? Yes, You !

What was required was that each panelist acknowledge his or her participation in the criminalization of parents by the courts and DCSE because of our uncritical reliance on Dr. Williams' Income Shares guideline. I pleaded with them not to be a party to the continuation of such wrongdoing.

One of the panel's lawyers quipped that Williams' numbers seemed close to what all of the other state's numbers were. Appendix C, however, clearly explains that many states adopted Dr. Williams' guidelines due to the pressure of the Federal government's deadlines. Their acceptance defies the federal requirement that child support awards must 'just and appropriate' in each and every case. To do that requires that CS awards be based on one's ability to pay rather than on a numbers-driven guideline that a widely accepted but faulty Income Shares approach allows.

One panelist had successfully moved that we ask the state to collect data on actual child rearing costs regarding both custodial and non-custodial parents as compared to both childless couples and people living alone. Such figures should have been insisted on years ago by Dr. Williams. As it was, DCSE's own expert, Attorney Byrd, saw right through to the shortcomings of the CEX data that Dr. Williams had used exclusively. Until Byrd's report was delivered, we had been asked to go along as if our central task was to complete our report on time. Indeed, our charge was much different than that. We had the responsibility to review a guideline that was now known to be fundamentally
flawed.

We had not done our work. The majority rubber stamped a badly patterned model for child support awards. This is frightening in its disregard for due process. Their eyes had been opened to the violation of constitutional rights perpetrated by both our courts and the DCSE 'under the color of law' and, too, with complete disregard for what is in the best interest of each and every child in our state, i.e., that they have ease of access to and meaningful involvement with both parents. Nonetheless, our panel, prior to my appointment, had certified a formula for disaster that our state had no good reason to have accepted in 1989, and even less reason to accept now. We had been asked to blind ourselves to the illegal incarceration of thousands of citizens in our state, to the haressment and pursuit of parents by attorneys on loan to DCSE. This is wrong, so wrong that its meaness taints each and every one of us. Knowing this, I moved ....that the December, 1998, vote be set aside.

That failed and I moved ....that the legislature be informed that the passing vote taken at the December 1998 meeting to continue with Income Shares was accomplished because none knew fully either the flaws of the guideline or the specific answers it could not give to assure a 'just and appropriate' child support award.

page eleven

This motion, too, failed to gain a second.

Quite clearly, our state has followed Attorney Morgan's example by 'building ' on Dr. Williams' errors. In so doing, it has created a civil rights nightmare, a problem so immense, so inexplicable, that even many of the panelists admitted that they did not understand much of our guideline's complexity. What I have added, as Appendix A to this report are Roger Gay's recommendations to creating a meaningful guideline. Too, in Appendix B, I have included Mr. Gay's Virginia Child Support Guideline Review with Recommendations for Essential Reform. Appendix C was prepared by Child Support consultant Don Bieniewicz. Appendix D was prepared by James Jonhston, CS researcher.

VIII. A Task Concluded?

Identifying the problems with and the misapplication of our state's guideline should have been the real task of each of the Quadrennial panels. Federal statutes compel that each award be 'just and appropriate', made on a case-by-case basis (please refer to the section on Federal Statutes in Appendix B). Only a cost-based, ability-to-pay model that is well defined as to its purpose can bring that about. Barring those considerations, our current guideline remains little more than a knife at the throat of each family in Virginia. Each imprisonment due to its arbitrary application is a testimony to that knife's ability to slice deep and deadly. Already, it has aided in the destruction of hundreds of thousands of families in our state.

Our flawed guideline encourages the ruthless pursuit of crimeless non-custodial parents. It does not end the co-dependent nature of our state's relationship with its welfare parents; it allows the transference of that co-depencency to those at the lowest income levels. At the middle income levels and higher, the guideline's inexplicable numbers create an irresistable incentive to divorce for the party most likely to be rewarded with child custody and child support. As a panel, we have been given no basis for supporting the Income Shares approach unless we believe non-custodial parents and their children should be stripped of their due process rights. Above all, we must realize that the numbers of a guideline can only follow from the policy that is laid out by the legislature. The judiciary must administer that policy-based guideline on a case-by-case basis. In Virginia, the state Code does not explicitly state the definition of child support that is essential to a sound policy. Such an omission renders our guideline's numbers arbitrary, and, therefore, non-rebuttable. Must we wait for the next Quadrennial Panel to address such an obvious and terrible oversight ? Without policy in place, rulings based on our state's guideline invite eventual appeal that will cast legal doubt on all of them. My report suggests that this panel and its sponsors have turned their backs on the hard responsibility of rectifying Virginia's flawed guideline.

page twelve

In the current issue of Fathering Magazine, James Johnston further details the ethical conflicts in Dr. Williams' position within the child support system (see Appendix D). In the current issue of Insight Magazine, Dr. Stephen Baskerville, a professor of political science at Howard University and long time resident of Virginia, calls the child custody and child support industry a system of "organized crime". Three months ago, the same magazine exposed a system of slush funds and kickbacks maintained by family court judges in Los Angeles and paid into by lawyers and other court officials. In April of 1999, the U.S. Attorney's office handed down a 133-count indictment against four Arkansas state senators for kickbacks, money-laudering and racketeering, almost all connected with the child custody and child support business.

Courts should be asked to examine Dr. Williams' involvement in matters of child support determination. Unless all states using his guideline initiate such investigations, they will be viewed as accessories collaborating to sustain his continued conflicted interest in child support design and collection. Such a discovery would focus on the resultant criminalization of innocent parents wrongly pursued and imprisoned. Child support enforcement agencies, including Virginia's, could be seen to be negligent rather than responsible with regard to our Constitutional rights. I suggest Virginia's future review panels follow the American National Standards Institute (ANSI) criteria for accrediting a standards-setting body. The ANSI approach requires that such a panel foster:

....openess
....balance of interests
....lack of dominance
....public notification and participation (consideration of appeals of those who are, or might be, directly and materially effected)
....resolution of comments
....and concensus

Our Quadrennial panel needed to condemn the damage our Income Shares Guideline causes and should have insisted on emancipating the wrongly imprisoned parents their children cannot do without.

Barry Koplen, Founder of Equal Parents, Equal Time
Father of two wonderful daughters, former NCP 7/20/99

Minority Report:

Virginia's Quadrennial Child Support Guideline
Review Commission
July 20, 1999

by

Barry M. Koplen

This text cites
Appendices A & B by Roger Gay and Appendix C by Don Bieniewicz Appendix D by Jim Johnston Any of the appendices are available from:

Mr. Bill Brownfield Management Services Unit Division of Child Support Enforcement
730 East Broad Street
Richmond, VA 23219
whb900@dcse.state.va.us

OR

ACFC Website
American Coalition for Fathers and Children
http://www.acfc.org
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Subject: Minority Report