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The history and implementation of child support guidelines in each jurisdiction presents various challenges to family law practitoners. These materials introduce the legislative development of the guidelines and describe their general applicability.

Introduction: Child Support Prior to the Guidelines: Defining the Problem

Historically, the amount of child support awarded was completely within the discretion of the judge, based on two primary factors: the ability of the obligor parent to pay and the needs of the child. In considering the ability of the obligor parent to pay, the court weighed the obligor parent's financial resources and personal needs. In considering the needs of the child, the court weighed the custodial parent's financial resources, the child's standard of living had the marriage not dissolved, the child's physical and emotional condition, and the child's educational needs.¹ 

Because the standard for the award of child support was amorphous, child support awards were subject to five major problems. First, many eligible parents had no child support awards at all, although they were entitled to such awards.²  In 1984, it was estimated that 30% of the 8.8 million custodial parents had no child support award.³  In 1989, 42.3% of the ten million mothers with children under age 21 whose fathers were living apart from the family did not have a child support award.⁴ 

Second, among parents who were awarded child support, the empirical evidence suggested award inadequacy. One study found that most noncustodial parents paid more in monthly car payments than they did in child support payments.⁵  Another study found that in 1985, the average support award was only $208 per month,⁶  which is only 23% of the average expenditures for two children in a middle income household.⁷ 

Third, studies showed the awards were inconsistent. One empirical study found that in one particular district court, support awards for one child ranged from 6% to 41% of the obligor's income; for two children, awards ranged from 5.6% to 40%.⁸  Another study reached similar conclusions.⁹  Thus, leaving the determination of child support to the complete discretion of judges based on "the needs of the child" led to inconsistent orders: two noncustodial parents with the same number of children, the same income, and the same circumstances, might very well obtain vastly different support orders.

Fourth, as a direct result of the inconsistency of the orders, obligors developed a disrespect for the court's orders, causing parents to simply forego their support obligations.¹⁰  In 1985, it was estimated that less than half of the women owed child support received the full amount due, and a full 26% received no support at all.¹¹  In 1989, of the half-million women due child support, only 51% received the full amount, 24% received partial payment, and 25% received nothing.¹²  For 1991, before all the states had their guidelines in place, the result was not much better.¹³ 

Fifth, because of the amorphous standard, neither parent had any means to predict what a court would order. Because neither parent could predict what a court would order, neither parent was willing to settle. With little incentive to settle for a party who could afford an attorney, negotiations would go on interminably. With parties unwilling to settle, courts reported tremendous pressures coping with an estimated one million divorces occurring annually, plus paternity cases and actions to modify existing orders.¹⁴ 

These problems with child support awards were of direct concern to the federal government, because the federal government provided the "safety net" for those families whose support was inadequate or not forthcoming through the Aid to Families with Dependent Children program. Clearly, if these problems could be alleviated, the cost to the federal government would decrease. Thus, the federal government sought to curtail the traditional expansive nature of judicial discretion in determining child support awards.¹⁵ 

The Federal Mandate 

  [a] Federal Legislation: Pre-1984

In 1935, Congress enacted legislation establishing the Aid for Dependent Child program (AFDC).¹⁶  AFDC established a partnership between the federal government and the states by providing appropriations to those states which adopt plans approved by the Secretary of Health and Human Services. The states in turn provide a minimum monthly subsistence payment to families meeting established need requirements.

In 1974, Congress passed the Family Support Act (FSA), Title IV-D of the Social Security Act, requiring states receiving AFDC funds to establish and enforce child support obligations. Every state receiving AFDC funds had to establish a child support enforcement agency popularly known as a "IV-D Agency" that was required to meet standards promulgated by the newly established Office of Child Support Enforcement (OCSE), a division of the Department of Health and Human Services. The primary goal of the FSA was to reduce the federal cost of the AFDC program by sharpening enforcement of support obligations.¹⁷ 

  [b] Federal Legislation: 1984 and After

      [1] Child Support Enforcement Amendments of 1984

In 1984, Congress enacted the Child Support Enforcement Amendments of 1984 (CSEA).¹⁸  By this act, Congress required the states to put teeth into their laws and strengthen their enforcement powers, even as to non-Title IV-D families. This act effectively broadened the scope of the FSA by requiring the states to: (1) require employers to withhold child support from paychecks of delinquent parents for one month; (2) provide for the imposition of liens against the property of defaulting support obligors; (3) deduct from federal and state income tax refunds unpaid support obligations. States receiving AFDC funds also had to offer full parent-locator and child support services to all custodial parents, regardless of whether they were receiving AFDC payments. Thus, more than one-half of the total support collections were going to children who were not on the welfare rolls.¹⁹ 

The 1984 legislation also required the Office of Child Support Enforcement to establish a national advisory panel on child support guidelines. At the same time, the 1984 legislation required the states to establish numeric guidelines to determine appropriate amounts of child support and that these guidelines be made available to judicial and administrative officials charged with setting child support.²⁰  These numeric guidelines were to be advisory only, however. The 1984 amendments thus injected federal initiative and authority more deeply than ever before into matters that previously had been viewed as reserved to the states.

      [2] Family Support Act of 1988

In 1987, the advisory panel of the Office of Child Support Enforcement prepared its recommendations for the development of child support guidelines to be used nationally.²¹  As a result of this study, Congress enacted the Family Support Act of 1988.²²  Most importantly, the 1988 act mandated that by 1994, states implement presumptive, rather than advisory, guidelines:

There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.²³ 

Federal law also requires that each state: (1) establish criteria under which application of the guidelines might be unjust or inappropriate, and require that when the decision-maker deviates from the guidelines, the decision-maker must make written findings as to why the guideline amount is unjust or inappropriate; (2) require that the guidelines be used not only to establish initial support awards, but for any subsequent modification of the award as well.²⁴ 

      [3] Post-1988 Amendments

Since 1988, there has been some tinkering with the the federal mandate. The most significant occurred in 1996, when Congress passed the "Welfare Reform Act of 1996," which radically changed the nature of the federal-state partnership that provided funds to the most needy. While the Welfare Reform Act repealed the federal guarantee of Title IV-D subsistence benefits, it did not alter the requirement of child support guidelines, and indeed added many new provisions concerning child support enforcement.

Significantly, the Welfare Reform Act amended 42 U.S.C. § 666(a)(10), by providing that states can adopt procedures for triennial review that do not require any change of circumstance or variance with the prior awards other than a cost of living increase.

  [c] Federal Regulations Implementing the Family Support Act

      [1] Minimum General Requirements

Pursuant to federal regulations, state guidelines must at a minimum satisfy certain requirements.²⁵  State guidelines must:

(1) Take into consideration all earnings and income of the absent parent;
(2) Be based on specific descriptive and numeric criteria and result in the computation of the support obligation;
(3) Provide for the child(ren)'s health care needs, through health insurance coverage of other means.

      [2] Rebuttable Presumption that Award is Correct

Consistent with the requirements of the Family Support Act of 1988, the federal regulations also require that the state guideline must provide that in any judicial or administrative proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the state's guideline is the correct amount of child support to be awarded.²⁶ 

      [3] Findings Necessary to Rebut Presumption

Finally, the federal regulations require that a written finding or specific finding on the record in any proceeding for an award of child support that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption, as determined by the criteria established by the state. Such criteria must take into consideration the best interests of the child. Findings that rebut the guidelines shall state the amount of support that would have been required under the guidelines, and must include a justification of why the order varies from the guidelines.²⁷ 

  [d] Principles Underlying Guideline Formation

The Advisory Panel on Child Support Guidelines also recommended to the states that they follow certain principles in enacting their guidelines:²⁸ 

(1) Both parents should share legal responsibility for support of their children, with the economic responsibility divided between the parents in proportion to their income;
(2) The subsistence needs of each parent should be taken into consideration in setting child support, but in virtually no event should the child support obligation be set at zero;
(3) Child support must cover a child's basic needs as a first priority, but, to the extent either parent enjoys a higher than subsistence level standard of living, the child is entitled to share in the benefit of that improved standard;
(4) Each child of a given parent has an equal right to share in that parent's income, subject to factors such as age of the child, income of the parent, income of a current spouse, and the presence of other dependents.
(5) Each child is entitled to determination of support without respect to the marital status of the parents at the time of the child's birth. Consequently, the guidelines should be used equally in cases of paternity, separation, and divorce.
(6) Application of the guidelines should be sexually nondiscriminatory.
(7) A guideline should not create extraneous negative effects on the major life decisions of either parent. In particular, the guideline should avoid creating economic disincentives for remarriage or labor force participation.
(8) A guideline should encourage the involvement of both parents in the child's upbringing. A guideline should take into consideration the financial support provided by parents in shared physical custody and extended visitation arrangements.

  [e] Goals of the Federal Mandate

By requiring the states to establish child support guidelines, the federal government hoped to accomplish four main goals, each goal corresponding to the perceived problems of the common law method of determining child support:²⁹  (1) increase the adequacy of child support awards; (2) increase the consistency and predictability of child support awards; (3) increase compliance through perceived fairness of child support awards; and (4) increase the ease of administration of child support cases.³⁰ 

The State Response to the Federal Mandate 

Each state, in response to the federal mandate, enacted child support guidelines. These guidelines may be accessed at Supportguidelines.com.

The federal mandate requiring states to establish presumptive guidelines provides that the guidelines may be adopted by statute, administrative rule, or judicial rule.³¹  The guidelines were enacted by legislative statute in: California, Colorado, the District of Columbia, Florida, Georgia, Illinois, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Nevada, New Hampshire, New Mexico, New York, Ohio, Oklahoma, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming. The guidelines were enacted by administrative regulation in: Connecticut, Maine, Montana, North Dakota, Oregon, South Carolina, Tennessee, and Wisconsin. The guidelines were enacted by court rule or decision in Alabama, Alaska, Arizona, Arkansas, Delaware, hawaii, Idaho, Indiana, Iowa, Kansas, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, North Carolina, Pennsylvania, and Rhode Island.

  [a] Overview of the Models

The states, in adopting their guidelines, echoed the goals of the federal mandate, by stating that the goals and purpose of state child support guidelines are (1) increased compliance through perceived fairness of a child support award; (2) consistency and predictability of child support awards; (3) ease of administration of child support cases; and (4) and increased adequacy of awards.³²  The various states have stated these goals in various ways. For example, the preface to the Indiana Child Support Guidelines states:

The Guidelines have three objectives: (1) to establish as state policy an adequate standard of support for children, subject to the ability of the parents to pay; (2) to make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; (3) to improve the efficiency of the court process by promoting settlements and giving courts and the parties guidelines in settling the level of awards.

The New Mexico Child Support Guidelines states:

The purpose of the child support guidelines are to: (1) establish as state policy an adequate standard of support for children, subject to the ability of the parents to pay; (2) make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; (3) improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance specified in this section.

The Pennsylvania Child Support Guidelines states:

Using the guidelines promotes (1) similar treatment of purposes similarly situated, (2) a more equitable distribution of the financial responsibility for raising children, (3) settlement of support matters without court involvement, and (4) more efficient hearings where they are necessary.

The Tennessee Child Support Guidelines states:

The major goals in the development of these guidelines are: (a) To decrease the number of impoverished children living in single parent families. (b) To make child support awards more equitable by ensuring more consistent treatment of persons in similar circumstances. (c) To improve efficiency of the court process by promoting settlements and by giving courts and parties guidance in establishing level of support awards. (d) To encourage parents paying support to maintain contact with their child(ren). (e) To ensure that when parents live separately, the economic impact on the child(ren) is minimized and to the extent that either parent enjoys a higher standard of living, the child(ren) share(s) in that higher standard. (f) To ensure that a minimum amount of child support is set for parents with a low income in order to maintain a bond between the parent and the child, to establish patterns of regular payment, and to enable the enforcement agency and party receiving support to maintain contact with the parent paying support.

The Washington Child Support Guidelines state:

Use of a state-wide schedule will benefit children and their parents by: (1) Increasing the adequacy of child support orders through the use of economic data as the basis for establishing the child support schedule; (2) Increasing the equity of child support orders by providing for comparable orders in cases with similar circumstances; (3) Reducing the adversarial nature of the proceedings by increasing voluntary settlements as a result of the greater predictability achieved by a uniform state-wide child support schedule.

In order to meet these goals, the states have implemented three basic child support calculation models: the "Income Shares" model, the "Percentage of Income" model (either flat percentage (F) or varying percentage (V)), and the "Melson Formula" model.³³ 

Although there are three models, all of the guideline models have certain aspects in common. First, most of the guidelines incorporate a "self-support reserve" for the obligor. That is, the obligor is allowed to retain a certain amount of income below which more than minimal support is not calculated. For example, under the Washington state³⁴  income shares model, the formula is not applied for obligors with net earnings of less than $500 per month. Under the Minnesota³⁵  percentage of income model, the guideline is not applied below $500 monthly net income, and the percentages are phased in above that level. Under the Delaware³⁶  Melson Formula model, a primary support allowance is established through the primary support level for the obligor, which is decreased if the obligor is living with another working adult.

Second, all the guidelines have a provision relating to imputed income.³⁷ 

Third, by federal regulation,³⁸  all the guidelines take into consideration the health care expenses for the children, by insurance or other means. The method by which the guidelines consider this expense varies, however.³⁹ 

Finally, in the past seven years since the enactment of the Family Support Act of 1988, most of the guidelines have incorporated into the formula by which the presumptive child support is determined special additions for child care expenses,⁴⁰  special formulas for shared custody,⁴¹  split custody,⁴²  extraordinary visitation,⁴³  and special deductions for the support for previous and subsequent children.⁴⁴  Specific consideration of the needs of the older child has also been incorporated into the guideline calculation in many states.⁴⁵  Because the child support guidelines have sought to incorporate these specific expenses into the guideline calculation itself, these expenses are referred to as "mandatory add-ons and deductions" rather than deviation factors.

  [b] The Income Shares Model

      [1] Calculation of Support Under the Income Shares Model

The foundation of the income shares model⁴⁶  is the tenet that a child should receive the same proportion of parental income that would have been received by the child if the parents had not divorced.

The Income Shares model is based on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. In an intact household, the income of both parents is generally pooled and spent for the benefit of all household members, including any children.⁴⁷ 

Thus, the income shares model calculates support as the share of each parent's income estimated to have been allocated to the child if the parents and child were living in an intact household.⁴⁸  This principle is consistent with the Uniform Marriage and Divorce Act, enacted in many states.⁴⁹ 

Using the Income Shares model, computation of child support is basically a four-step process:

1. The income of the parents (gross or net) is determined and added together.
2. A "basic child support obligation" is computed based on the combined income of the parents, using a table or grid in the guidelines.⁵⁰  The amounts in the table are derived from economic data on household expenditures on children.⁵¹ 
3. A "presumptive child support obligation" is then computed by adding expenditures for work-related child care expenses and extraordinary medical expenses to the basic child support obligation. Other add-ons and deductions may also be calculated.⁵² 
4. The presumptive child support obligation is prorated between each parent based on his or her proportionate share of total income. The obligor's obligation is payable as child support, while the obligee's obligation is retained and presumed to be spent directly on the child.

For example, suppose child support must be determined for one child whose custodial parent has a gross income of $1,000 per month and whose noncustodial parent has a gross income of $2,000 per month. Child care expenses are $50 per month, and extraordinary medical expenses are $15 per month. (For ease in calculation, assume that health insurance is paid by the father's employer, and there are no pre-existing support orders for child support or alimony.)

Using the Alabama child support guideline,⁵³  the calculation of child support would be as follows:

(1) First, add the two parents' incomes to reach a combined income of $3,000.
(2) Second, using the specified formula provided in the statute, determine the basic child support obligation for combined income of $3,000. In this case, it is $437.
(3) Third, add to the $437 per month the $50 per month for child care; the total child support obligation is $487.
(4) Finally, prorate the obligation between the mother and father based on their respective shares of total income. The father's presumptive child support obligation is thus 66.6% x $487, or $324.66. An additional award for extraordinary medical expenses may be made in the discretion of the court as a deviation factor.

Using the Colorado child support guideline,⁵⁴  the calculation of child support would be as follows:

(1) First, add the two parents' incomes to reach a combined income of $3,000.
(2) Second, using the chart provided in the statute, determine the basic child support obligation. In this case, it is $434.
(3) Third, add to the $434 per month the $50 per month for child care, and the $15 per month for extraordinary medical expenses; the total child support obligation is $499.
(4) Finally, prorate the obligation between the mother and father based on their respective shares of total income. The father's presumptive child support obligation is thus 66.6% x $499, or $332.66.

Using the Virginia child support guideline,⁵⁵  the calculation of child support would be as follows:

(1) First, add the two parents' incomes to reach a combined income of $3,000.
(2) Second, using the chart provided in the statute, determine the basic child support obligation. In this case, it is $445.
(3) Third, add to the $445 per month the $50 per month for child care, and the $15 per month for extraordinary medical expenses; the total child support obligation is $510.
(4) finally, prorate the obligation between the mother and father based on their respective shares of total income. The father's presumptive child support obligation is thus 66.6% x $510, or $339.99.

      [2] Strengths and Weaknesses of the Income Shares Model

The main distinguishing feature of the income shares model is that it embodies the underlying economic assumption that as income increases, the proportion of income spent on child support decreases.

For example, one study found that in an intact family, the percentage of net income spent on children by income level and by number of children decreased as demonstrated in the following Table.

Critics have charged that the income shares model is based on faulty underlying economic research. One study has suggested that the underlying economic data failed to reflect true child-related expenditures in upper income families including such non-consumer expenditures as principal on home, savings, and trusts for the benefit of children. Thus, the income shares model does not accomplish the goal of ensuring that parents, after they break up, continue to spend on their children the same percentage of income that they would have spent if they were together.⁵⁶ 

Another distinguishing feature of the income shares model is that it illustrates graphically that both parents are sharing in the support of the child.⁵⁷  Where the perception of fairness is as important as fairness itself, this feature is its greatest asset.

A final distinguishing feature of the income shares model is that it can more easily than the flat percentage model take into consideration adjustments for shared and split custody, health care needs, child care expenses, serial family development, and children's ages by the manipulation of income, add-ons and deductions and by then allocating these costs between the parents. Because these factors can be built into the income shares formula, there is less reason for deviation from the guideline's presumptive award. Limiting deviation meets the ideal of perceived fairness, as well as the federal requirement that the number of cases in which deviation is granted be limited. Limited deviation also meets the goals of consistency and predictability. Given that the ultimate goal of child support guidelines is increased compliance through perceived fairness, the income shares model meets this goal.

      [i] Tables 1-4 and 1-5: Percentage of Income Devoted to Child Support

TABLE 1-4

PERCENTAGE OF INCOME DEVOTED TO SUPPORT OF CHILDREN IN INTACT FAMILIES58
Income Level	0- $10,650	$10,651- $12,150	$12,151- $21,700	$21,701- $28,200	$28,201- $39,975	$39,796- $51,875	Over $51,875
No.
1	26.0%	25.6%	24.7%	23.7%	22.9%	21.8%	19.2%
2	40.4%	39.8%	38.3%	36.8%	35.5%	33.9%	29.7%
3	50.6%	49.8%	47.9%	46.1%	44.4%	42.4%	37.2%

Under the income shares model, child support as a percentage of net income is as follows:⁵⁹ 

TABLE 1-5

PERCENTAGE OF INCOME DEVOTED TO SUPPORT UNDER INCOME SHARES MODEL
Income Level	0- $5,000	$5,601- $10,650	$10,651- $16,725	$16,726- $28,200	$28,201- $39,975	$39,796- $51,875	Over $51,875
No.
1	23.8%	23.7%	23.3%	21.6%	21.0%	20.1%	17.8%
2	37.0%	36.7%	36.1%	33.5%	32.7%	31.2%	27.7%
3	46.3%	46.0%	45.2%	42.0%	40.9%	39.0%	34.7%
4	52.2%	51.8%	51.0%	47.3%	46.1%	44.0%	39.1%
5	57.0%	56.5%	55.6%	51.6%	50.3%	48.0%	42.6%
6	60.9%	60.4%	59.5%	55.2%	53.8%	51.3%	45.6%

  [c] The Percentage of Income Model

      [1] Calculation of Support Under the Percentage of Income Model

The percentage of income model sets support as a percentage of only the noncustodial parent's income, either gross or net.⁶⁰  A percentage of income guidelines does not consider the custodial parent's income; the standard assumes that each parent will expend the designated proportion of income on the child, with the custodial parent's proportion spent directly.

There are two main variations on the percentage of income model: the flat percentage model, and the varying percentage model. Under the flat percentage model, the percentage of income devoted to child support remains constant at all income levels.⁶¹  Under the varying percentage model, however, the percentage of income devoted to child support varies according to the level of income. Like the income shares model, the support award decreases as a percentage of income as income increases. Under either variation, the percentage to be applied is determined by the number of children and, in some states, by the ages of the children.⁶² 

The calculation of child support under a percentage of income approach is basically a three-step process:

1. The noncustodial parent's income (gross or net) is determined.

2. The basic child support order is determined by applying a percentage to that income.

3. Adjustments are made for add-ons and deductions to reach a final presumptive order.

For example, suppose child support must be determined for one child whose custodial parent has a gross income of $1,000 per month and whose noncustodial parent has a gross income of $2,000 per month. Child care expenses are $50 per month, and extraordinary medical expenses are $15 per month. (For ease in calculation, assume that health insurance is paid by the father's employer, and there are no pre-existing support orders for child support or alimony.)

In this case, all that must be done is apply a percentage contained in the statute to the noncustodial parent's income, and then include the add-ons and deductions.

Using the Wisconsin child support guideline,⁶³  the calculation of child support would be as follows:

(1) First, determine the noncustodial parent's income. In this case, it is $2,000.

(2) Determine the appropriate percentage. For one child, it is 17%. Thus, the basic child support obligation is 17% x $2,000, or $340.

      [2] Strengths and Weaknesses of the Percentage of Income Model

The flat percentage of income model does not incorporate the principle that as income increases, the percentage of income devoted to child care decreases. Rather, the flat percentage of income model applies the same percentage to all income.⁶⁴  The varying percentage model, however, does incorporate the principle that as income increases, the percentage of income devoted to child care decreases. The strength or weakness of each variation of this model, therefore, will depend on the correctness of the underlying economic assumption that the percentage of income devoted to child support remains or does not remain constant throughout all levels of income.

Additionally, some flat percentage of income states have chosen to set a cap on child support at the highest income levels. Under this cap, there is a point of income for the noncustodial parent beyond which child support will not presumptively continue to rise.⁶⁵  Thus, even under the flat percentage of income model, at the highest levels of income, the percentage of income devoted to child support is lower than at the lowest levels of income. Thus, the percentage of income model mimicks the income shares model in its most distinguishing feature.

Proponents of the percentage of income model argue that both parents are assumed to contribute to the child's upbringing in the same proportion as the obligor.⁶⁶  The custodial parent is making the contribution in the manner he or she would have made had the parties not divorced. Thus, there is no need to adopt a more complex formula.

Proponents of the percentage of income model also argue that the percentage of income model is simpler. It is easier to learn, easier to explain, easier to computerize, and less prone to error.⁶⁷  Because one of the goals in adopting guidelines is ease of use, this argument is not without merit.

Many have argued, however, that it is inherently unfair for the custodial parent's income not to affect the presumptive amount. Under the percentage of income model, only a large disparity between the custodial parent's income and the non-custodial parent's income will serve as a statutory factor upon which to base a deviation.⁶⁸  The failure of the percentage of income model to consider the custodial parent's income, however, may be balanced out by the model's failure to ever impute income to the custodial parent as well.⁶⁹ 

Opponents of the percentage of income model also argue that states that have adopted the percentage of income model generally do not take into consideration adjustments for child care, extraordinary medical expenses, shared or split custody, serial family development, or, most significantly, extremely high or low custodial parent income. Thus, while the percentage of income model has the advantage of ease of administration, where such commonly occurring factors need to be dealt with as deviations rather than part of the formula, the goal of consistency and predictability is lost. Further, where deviation becomes the norm, the goal of perceived fairness is lost as well.

  [d] The Melson Formula Model

      [1] Calculation of Support Under the Melson Formula Model

The Melson formula was named after Judge Elwood F. Melson of the Delaware Family Court and was fully explained and adopted in Dalton v. Clanton.⁷⁰  The formula, a more complicated version of the income shares model, reflects several public policy judgments. First, the Melson Formula explicitly recognizes that support of others is impossible until one's own basic support needs are met. Second, the Melson Formula model reflects the public policy that further enhancement of the parents' own economic status should not be allowed until the parents jointly, in proportion to their incomes, meet the basic poverty level needs of their children. Finally, the Melson Formula model, by incorporating a Standard of Living Adjustment (SOLA), reflects the policy judgment that parents should share their additional incomes with their children, improving their children's standard of living as their own standard of living improves.

The formula allocates to each parent a poverty self-support reserve. The formula then determines the total remaining combined parental income, the noncustodial parent's percentage thereof, and applies the noncustodial parent's percentage to a standard "primary support obligation" based on the number of children. Finally, after the primary support obligation is subtracted, the formula assesses the noncustodial parent an additional percentage of his or her remaining income.

The Melson Formula model is thus basically a six step process:

1. Provide for each parent's minimal self-support needs.

2. Provide for the children's primary support needs.

3. Determine work-related child care expenses and extraordinary medical expenses.

4. Determine the Standard of Living Allowance.

5. Add together the amounts determined in steps 2, 3, and 4.

6. Allocate the support between the parents according to each parent's percentage of total net income.

For example, suppose child support must be determined for one child whose custodial parent has a gross income of $1,000 per month and whose noncustodial parent has a gross income of $2,000 per month. Child care expenses are $50 per month, and extraordinary medical expenses are $15 per month. (For ease in calculation, assume that health insurance is paid by the father's employer, and there are no pre-existing support orders for child support or alimony.)

Using the Delaware ⁷¹  child support guidelines, the calculation of child support would be as follows:

(1) First, subtract federal and state taxes, and subtract a self-support reserve of $550 for each parent to yield a "net" income of $950 for the noncustodial parent, and $230 for the custodial parent.

(2) Second, add the two net incomes of the parents to reach a combined net available income of $1180. Thus, the custodial parent's proportional obligation is 80%, or $950 = $1180.

(3) Third, the basic support obligation is determined. Using the chart provided, it is $220 for one child.

(4) Fourth, added to the $220 is child care expenses of $50 per month, to yield a primary support obligation of $270.

(5) Fifth, determine the amount of SOLA available. The SOLA amount is the amount determined in (2), $1180, minus the amount determined in (4), $270. The available SOLA is $910. The SOLA percentage, as determined from the chart provided, is 18%; thus, the SOLA is $163.80.

(6) Sixth, add together the primary support obligation, $270, plus the SOLA obligation, $163.80. The total support obligation is thus $433.80.

(7) Finally, multiply the total support obligation by the appropriate noncustodial parent percentage to yield the noncustodial parent's obligation. In this case, it is $347.04.

      [2] Strengths and Weaknesses of the Melson Formula Model

The proponents of the Melson Formula model argue its internal logic makes it the fairest of the models.⁷²  Even though the Melson Formula model seems to be the most complicated of the models, its proponents contend that its seeming complexity is superficial; once a practitioner has used the Melson Formula model, its subsequent application is simple.⁷³ 

The Melson Formula model is, indeed, the most internally consistent. It takes into consideration not only special custody arrangements and health care needs, it also takes into consideration each parent's needs. It is thus, on its face, the fairest as perceived by the parent. Where perceived fairness is the most important factor, then the Melson Formula model is the clear winner. Moreover, one expert has found that the Melson Formula model tends to produce less extreme differences in living standards where one parent has a very low income and the other parent has significantly higher income.⁷⁴  This again contributes to the perceived fairness of the Melson Formula model. Moreover, because the Melson Formula model takes into consideration commonly occurring expenses, it is consistent and predictable. Its only fault is in its facial complexity.

  [e] A Comparison of the Models

As noted in the preceding discussion, the models implemented by the states have different conceptual frameworks. Despite these differences, where the parents' combined income is in the middle range, the resulting support order is the same regardless of the model used.⁷⁵  At the highest and lowest income levels, however, the income shares model (including the Melson Formula model as a type of income shares model) and the percentage of income model will not produce the same results.⁷⁶ 

Although the percentage of income model has fewer steps than the income shares model, the method in effect duplicates the income shares model where the parties have incomes that are not widely divergent, and where the parties do not have extremely low or high incomes. The reason the result is the same can be found using algebraic notation,⁷⁷  where the following values are represented:

C = custodial parent's income

N = noncustodial parent's income

P = percentage used to determine support

S = support amount

Using these values, the income shares formula may be represented as follows:

(C + N)P x      N      = S
                    (C + N)

The formula may be simplified as follows:

(C + N)P x      N      = S
     1             (C + N)

P x N = S
 1   1

P x N = S
    1

P x N = S

The last equation, P x N = S, is merely another way of stating the percentage of income formula. This formula only works, however, where the P, the percentage of income used to determine support, is the same in both the percentage of income model and the income shares model; P is the same in both these models only in the middle ranges of income.

As already noted, however, many states have chosen the income shares model because it takes into account the economic presumption that as income increases, the percentage of income devoted to child care decreases, and because it graphically illustrates that both parents are contributing to the support of the child. Some economic evidence suggests, however, that the percentage of income devoted to child support remains constant as income increases. Further economic studies may be needed to prove the superiority of one model over the other.

There is no evidence that any one model is superior to any other model in terms of achieving the goals of increased compliance, consistency and predictability, and ease of administration.⁷⁸ 

There is some evidence concerning adequacy of awards. One study indicates that the income shares model produces the highest awards for low-income families, the Melson Formula model produces the highest award for middle-income families, and the percentage of income model produces the highest awards in upper-income families.⁷⁹ 

There is also evidence that adoption of child support guidelines by a state, as opposed to no guidelines, reduced variation in awards,⁸⁰  increased the adequacy of the awards,⁸¹  and increased the efficiency of the court processes, by increasing the number of voluntary settlements.⁸²  A recent report also indicates that compliance is greatest among noncustodial parents who have joint custody or extended visitation.⁸³  If it can be shown that the adoption of child support guidelines has increased the incidence of joint custody and extended visitation, then there may be a direct link between child support guidelines and compliance.

Adoption of the guidelines has, therefore, achieved at least three of the four stated goals: consistency and predictability, ease of administration, and increased adequacy of awards.

Constitutional Challenges to Guidelines 

  [a] Federal Mandate as Unconstitutional

In Childrens and Parents Rights Association of Ohio, Inc. v. Sullivan,⁸⁴  the court considered an argument that the federal statutes and regulations governing child support, i.e., the requirement that all states enact child support guidelines, are unconstitutional. The plaintiffs first asserted that the federal mandate allowed the states too great a role in determining child support. Since the federal government has taken the role of enforcing child support through AFDC, the federal government could not delegate that same authority to the states. In the alternative, the plaintiffs asserted that the federal government is overly involved in child support determinations, a matter that should be left to the states. The court easily disposed of all arguments. First, valid federal policies may be executed with state cooperation. The Constitution does not require that all welfare programs be either completely federally administered, or completely left to the states. Rather, the Supreme Court has recognized that the AFDC program is based on a scheme of cooperative federalism.⁸⁵  Second, relevant authority teaches us that the federal government may, in the exercise of its spending power, require that states adhere to certain rules as a condition to receiving federal funds. The spending power is limited only by the requirement the requirement that it be in pursuit of the general welfare. The child support regulations enacted by the Department of Health and Human Services passed constitutional muster on all points, because the adequate support of children was clearly in pursuit of the general welfare.

  [b] Method of Enactment by State as Unconstitutional (Violation of Separation of Powers)

      [1] Enactment by Court Order

Where guidelines were enacted by court order or decision, the guidelines were challenged as a violation of separation of powers. These challenges posit the argument that judges are improperly making substantive rules of law, a function of the legislative branch.

Some constitutional challenges have come from the very judiciary enacting the child support guideline. For example, in 1989, the Maine Supreme Court issued its guidelines by a four to seven vote after being directed by the state legislature to enact child support guidelines. The statement of nonconcurrence stated,

At the legislature's direction, the Court has set out upon a path it has never previously taken. Today the Court writes law in a context divorced from the decision of any particular case and in an area not involving the customary work day rules of court like procedure, evidence, and lawyer/judge discipline. The Child Support Guidelines involve difficult and abstract questions of policy that the people's elected representatives, not this Court, should decide. At the very least, an executive agency should promulgate such rules according to standards set by the legislature.⁸⁶ 

Maine subsequently enacted its child support guidelines by legislative act.⁸⁷ 

Similarly, Alaska adopted its guidelines by court rule. One justice dissented, stating that the new court rule purported to establish substantive rules of law governing support awards. Citing the Alaska Constitution,⁸⁸  the dissent claimed the court was empowered to make rules of law only in actual cases, in the administration of the courts, and in matters of practice and procedure.⁸⁹  The same constitutional argument was raised when Arkansas adopted its child support guidelines by order of the Supreme Court, when one justice declared that the legislature had unconstitutionally delegated the authority to legislate to the court.⁹⁰  In both Alaska and Arkansas, however, the majority of the court declared that the legislation authorizing the court to promulgate child support guidelines must be presumed to be constitutional; any challenge must come from party litigants.

The same arguments were raised by private litigants in Arizona.⁹¹  In that case, the court disposed of the constitutional argument by declaring, "The guidelines are merely that, guidelines. They are to assist the trial courts of Arizona in applying the factors set forth in the statute."⁹²  Because the guidelines operate as a presumption, they are merely "procedural" in nature, and not a substantive rule of law. Thus, promulgation of the guidelines were within the court's rule-making ability. The courts of Alaska,⁹³  Delaware,⁹⁴  the District of Columbia,⁹⁵  and Ohio,⁹⁶  also agreed that promulgation of child support guidelines were within the court's rule-making powers.⁹⁷  The courts must, however, adhere to proper procedure in exercising their rule-making powers.⁹⁸ 

      [2] Enactment by Legislature

Where the guidelines were enacted by the legislature, some litigants have argued that such action encroached on judicial discretion.

In Boris v. Blaisdell,⁹⁹  the father argued that the Illinois child support guidelines violate the separation of powers requirement of the Illinois Constitution. The court disposed of this argument by characterizing the child support guidelines as involving the application of substantive law. Thus, the enactment of child support guidelines could no more be an incursion into the power of the judiciary than the prior law establishing child support awards pursuant to certain enumerated factors.¹⁰⁰ 

      [3] Enactment by Administrative Regulation

Finally, where the guidelines were adopted by administrative regulation, the constitutional challenge was based on the argument that the administrative agency enacting the child support guidelines must do so in accordance with the state's version of the Uniform Administrative Procedures Act. Failure to do so will render the guidelines infirm. This argument was successful in Illies v. Illies.¹⁰¹  In that case, the court held that the North Dakota Department of Human Services is an administrative agency subject to the strictures of the state's Administrative Agencies Practice Act. The regulations were subsequently re-promulgated in accordance with the act.

  [c] Application of State Guidelines as Violation of Due Process

Some litigants have argued that the application of child support guidelines in their particular case constitutes a violation of due process. In Schenek v. Schenek,¹⁰²  the father argued that the child support guidelines violated due process because the state guidelines contain provisions not required by the federal legislation. The court held that the guidelines passed constitutional muster, because the court has the authority to deviate in the appropriate circumstances. Thus, as long as the guidelines are equitably applied and provide for discretion to suit the particular circumstances of each case, they are not constitutionally infirm.

The court in Boris v. Blaisdell ,¹⁰³  reached the same conclusion. Because no irrebuttable presumption operates, but rather the guidelines create a fully rebuttable presumption of applicability, the guidelines are constitutional in their operation.¹⁰⁴ 

  [d] Application of State Guidelines as Violation of Equal Protection

The various states' child support guidelines have come under a variety of equal protection attacks. For example, in In re Marriage of Dade,¹⁰⁵  the father challenged the child support guidelines on the grounds that the guidelines allowed consideration of income of the spouse of the noncustodial parent, but not the income of the spouse of the custodial parent. The court held that this was a misreading of the statute; both spouses' incomes could be considered in the appropriate circumstances. Thus, the guidelines were not a denial of equal protection.¹⁰⁶ 

In Coghill v. Coghill,¹⁰⁷  the court also rejected an equal protection claim. In that case, the father argued that Alaska's child support guidelines, which consider only the income of the noncustodial parent, violated equal protection. The father was essentially arguing that the Percentage of Income Model was unconstitutional.¹⁰⁸  The court responded to this argument by declaring that equal protection has never required that differently situated persons be treated the same way. Because the custodial and noncustodial parents are not similarly situated, they may be treated differently. Moreover, the interest a parent is seeking to protect is an economic interest. The government needs only a rational basis to enact legislation touching on these interests. The equal protection argument must therefore fail.¹⁰⁹ 

In P.O.P.S. v. Gardner ,¹¹⁰  a group called "Parents Opposed to Punitive Support" challenged the Washington guidelines as violative of the equal protection rights of children living in the noncustodial parent's household. The group claimed that children living with the noncustodial parent were denied equal protection, because their support was determined after, and thus necessarily on a smaller basis than, the support of prior child. The court disagreed, and held that because the schedule explicitly permitted the court to consider children from the noncustodial household, the children's equal protection rights were not violated. Moreover, the 14th amendment does not mandate the rigid policy prescriptions urged by P.O.P.S.¹¹¹ 

  [e] Other Constitutional Challenges to State Guidelines

In what has to be the most novel challenge to a state's child support guidelines, the father in Hunt v. Hunt¹¹²  contended that the court's order requiring him to pay child support under the state's guidelines violated his first amendment rights of free exercise of religion. In particular, the father claimed that he could not, consistent with his faith, work outside the community and earn money to meet his support obligation as determined by the court. The court disposed of this argument, holding that the parental obligation of support is a compelling state interest for purposes of determining whether a parent can be forced to pay child support even though it burdens his religious beliefs.

In another novel constitutional challenge, in Shrivastava v. Mates ¹¹³  the father challenged the application of the child support guidelines in his particular case because he and the wife had entered into a contract regarding the support of the children prior to the enactment of the guidelines. Specifically, he argued that application of the guidelines in his case would impair the obligation of the contract in violation of the Contract Clause of the United States Constitution. The court disposed of the argument, holding that while the application of the guidelines might operate as an impairment of the contractual relationship between the mother and father, the guidelines further a significant and legitimate public purpose. Moreover, even before the guidelines were enacted, the parties could not by contract bind a court to a particular amount of child support, so there really was no contract impaired.¹¹⁴ 

Other novel constitutional attacks, e.g., unconstitutionally vague,¹¹⁵  unconstitutional interference with property rights,¹¹⁶  and unconstitutional enactment of ex post facto law,¹¹⁷  have also failed.

Types of Proceedings to Which Guidelines Apply 

The federal mandate specifies that the guidelines must serve as a rebuttable presumption in "any judicial or administrative proceeding" involving the establishment of child support for a minor child. Simply stated, then, a state's child support guidelines apply to any and all court action or administrative proceeding in which a child support order for a minor child is initially determined. Such actions include the establishment of paternity,¹¹⁸  annulment, separation, divorce, abuse and neglect proceedings, Uniform Interstate Family Support Act proceedings, and modification proceedings. Pendente lite support awards in these actions are included as well.¹¹⁹ 

For example, the North Dakota Child Support Guideline¹²⁰  provides:

The child support guideline schedule amount is rebuttably presumed to be the correct amount of child support in all child support determinations necessitated by actions for the support of children of married persons, actions seeking domestic violence protection orders, actions arriving out of divorce, actions arising out of paternity determinations, actions based upon a claim for necessaries, actions arising out of juvenile court proceedings, and actions seeking reciprocal enforcement of support.

The guidelines must also be used in any action for modification of support.¹²¹ 

The cases have generally held that the child support guidelines do not apply to awards of post-majority support such as college tuition, even if such support is permitted under controlling state law.¹²²  The guidelines may apply, however, to the determination of a support obligation of an adult child who is under a disability and thus entitled to post-majority support.¹²³ 

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Footnotes

¹  See 2 Homer C. Clark, The Law of Domestic Relations in the United States § 18.1 at 359-60 (2d ed. 1987); see also Uniform Marriage and Divorce Act § 309, 9A U.L.A. 400 (1987). (back)

²  See generally Harry D. Krause, Child Support In America (1981); James B. McLindon, Separate But Unequal: The Economic Disaster of Divorce for Women and Children, 21 Fam. L. Q. 351 (1987); Heather Wishik, Economics of Divorce, 20 Fam. L. Q. 79, 96-98 (1986).

Sociologist Lenore Weitzman, in her 1985 book The Divorce Revolution, concluded that a woman's standard of living in the first year after a no-fault divorce dropped 73%, while a man's rose 42%. Id. At 337-39. Sociologists challenged these figures, and research has consistently found that divorced women's standard of living fell about 30% while those of men's rose 10%, regardless of whether the divorce occurred under no-fault or fault conditions. Moreover, Weitzman has been unable to replicate her figures with research, has stated there were "serious errors and problems" with her research, and "it would be irresponsible" for researchers to draw on her work.

Unfortunately, Weitzman's figures have been consistently cited in scores of law review articles, including the ones cited herein, that do not dispute her figures. Moreover, Weitzman's figures have been used to blame women's poverty not on the real sources of poverty (unpaid child support and the wage gap), but on no-fault divorce. See Susan Faludi, "Statistically Challenged," The Nation, Vol. 262, No. 15 at 10 (April 15, 1996).

U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: Special Report (1987). The incidence of lack of support orders was highest among never-married mothers. Irwin Garfinkel, Child Support and Public Policy (1987). See generally Nancy Thoennes, Patricia Tjaden and Jessica Pearson, The Impact of Child Support Guidelines on Award Adequacy, Award Variability, and Case Processing Efficiency, 25 Fam. L.Q. 325, 326 (1991). (back)

³  U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1989 (Current Population Reports, Series P-60, No. 173, 1990). (back)

⁴  Lucy Yee, What Really Happens in Child Support Cases: An Empirical Study of Establishment and Enforcement of Child Support Orders in the Denver District Court, 57 Den. L. J. 21, 36 (1979). (back)

⁵  U.S. Census Bureau, U.S. Dep't of Commerce, Money Income and Poverty Status of Families and Persons in the United States: 1985 (Current Population Reports, Series P-60, No. 154, 1986); U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1985 Supplemental Report (Current Population Reports, Series P-23, No. 154, 1989). (back)

⁶  Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report, at II-88 (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987), citing Thomas Espenshade, Investing in Children: New Estimates of Parental Expenditures (1984). (back)

⁷  Lucy Yee, What Really Happens in Child Support Cases: An Empirical Study of Establishment and Enforcement of Child Support Orders in the Denver District Court, 57 Den. L. J. 21, 36 (1979). (back)

⁸  K. White & R. Stone, A Study of Alimony and Child Support Awards: An Analysis of Judicial Discretion in Divorce Cases in Kansas, 10 Fam. L. Q. 75 (1976). See generally Nancy Thoennes, Patricia Tjaden & Jessica Pearson, The Impact of Child Support Guidelines on Award Adequacy, Award Variability, and Case Processing Efficiency, 25 Fam. L. Q. 325, 327 (1991). (back)

⁹  Nancy Erickson, Child Support Manual for Attorneys and Advocates, at 179 (Nat'l Center on Women and Family Law, 1992); Nancy Thoennes, Patricia Tjaden, & Jessica Pearson, The Impact of Child Support Guidelines on Award Adequacy, Award Variability, and Case Processing Efficiency, 25 Fam. L. Q. 325, 327 (1991), citing Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987). (back)

¹⁰  U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1985 (Current Population Reports, Series P-23, No. 154, 1989). See also U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1983 (Current Population Reports, Series P-23, No. 141, 1984), where the Census Bureau reported that in 1983, of the 8.7 million mothers who were living with a child under age 21 without a father in the home, 58% had been awarded child support, and the remainder had not. Of those who did receive support, only 50% received the full amount due. (back)

¹¹  U.S. Census Bureau, U.S. Dep't of Commerce, Child Support and Alimony: 1989 (Current Population Reports, Series P-60, No. 173, 1990). (back)

¹²  The U.S. Dep't of Commerce and the U.S. Dep't of Health and Human Services released a joint report in 1995 based on data collected in 1991 as part of the April 1992 supplement to Current Population Survey. The report shows that in 1991, of the 54% of custodial parents who had support obligations in place, only 67% of outstanding child support obligations were met. (back)

¹³  Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987). (back)

¹⁴  E.g., Westgate v. Westgate, 887 P.2d 737 (Nev. 1994) (the new child support guidelines intentionally depart from the traditional practice in which courts exercised broad discretion and determining awards). (back)

¹⁵  42 U.S.C.A. §§ 601 et seq. (back)

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Footnotes

¹⁶  Social Security Amendments of 1974, Pub. L. 93-647, 88 Stat. 2337, at 42 U.S.C. §§ 651-665. (back)

¹⁷  As state in Marion Dobbs, et al., Enforcing Child and Spousal Support § 4.04 (1995), AFDC payments are in a direct sense child support paid by the taxpayer; eligibility for AFDC requires a dependent child and an absent parent. (back)

¹⁸  Pub. L. 98-378, 98 Stat. 1305, amending 42 U.S.C. §§ 657-662. (back)

¹⁹  Harry D. Krause, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, 24 Fam. L. Q. 1, 7 (1990). For further discussion of the 1984 law, see Diane Dodson & Nancy Hurowitz, Child Support Enforcement Amendments of 1984: New Tools for Enforcement, 10 Fam. L. Rep. (BNA) 3051 (1984). (back)

²⁰  45 C.F.R. § 302.56(c) requires that the guidelines be based on specific descriptive and numeric criteria that results in a mathematical computation of the support award. (back)

²¹  Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987). (back)

²²  Pub. L. 100-485, 102 Stat. 2343, codified primarily at 42 U.S.C. §§ 654, 666-667. (back)

²³  42 U.S.C. § 667(b)(2). (back)

²⁴  42 U.S.C. § 667. (back)

²⁵  45 C.F.R § 302.56. (back)

²⁶  45 C.F.R. § 302.56(f). (back)

²⁷  45 C.F.R. § 302.56(g). (back)

²⁸  Robert Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1987). (back)

²⁹  See H. Rep. No. 527, 98th Cong., 1st Sess. 49 (1983) for listing of concerns that led Congress to require the establishment of child support guidelines; see § 1.01 for a discussion of the problems under the existing common law. (back)

³⁰  Dr. Robert Williams, Chairman of the Advisory Panel, characterized the federal government's objectives as follows: (1) To enhance the adequacy of orders for child support by making them more consistent with economic evidence on the costs of child rearing; (2) To improve the equity of orders by assuring more comparable treatment for cases with similar circumstances; and (3) To improve the efficiency of adjudicating child support orders by encouraging voluntary settlements and reducing the hearing time required to resolve contested cases.

Although Dr. Williams omitted increased compliance in this statement of goals, this must be seen as understood; the entire purpose of the guidelines is to reduce the cost of child support collection and enforcement to the federal government. Indeed, the Congressional findings indicate that the goals of state guidelines were increased compliance with orders, increased efficiency in case processing, and increased adequacy of awards. Pub.L. No. 98-378, § 23; 1984 U.S. Code Cong. & Admin. News 2397. Moreover, without a direct nexus to federal governmental concerns, it is doubtful that Congress has the power to enact legislation requiring states to enact guidelines under U.S. v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). The Child Support Recovery Act, 18 U.S.C. § 228, has withstood constitutional attack on the basis that Congress may regulate the nonpayment of child support across state lines because (1) the nonpayment of child support involves payment of a debt and therefore constitutes economic activity or commerce, and (2) the nonpayment of child support in the aggregate has a substantial impact on commerce. (back)

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