Copyright 1991 by Anne P. Mitchell
The State of California has no single standard to promote equitable, adequate child support awards." California Civil Code 4820, "The Agnos Child Support Standard Act of 1984"
At the time, truer words had never been placed in print. And not all that long ago one could have easily substituted the name of any state in the place of "California". However, with the move to child-support formulas, such as that put forth by the Agnos Act, many states now have something which they can point to and say "there is our standard." Whether or not these formulas promote "equitable, adequate child support awards" is quite another story.
Let us set aside, for a moment, the question of whether or not child-support formulas in fact promote equitable and adequate awards. Let us instead focus on the reason for enacting such a formula. "Well, that's obvious," the casual observer may say, "women don't get enough child-support, and can't afford to support their children after divorce." Or perhaps the observer might point out that support awards are rarely consistent, one court may award $50 a week to one mother, while the court in the next town over awards $250 a week to a similarly situated mother. These disparities however, are not the sole (and indeed some would suggest not the primary) reason for child-support formula legislation being enacted in many states.
"The Aid to Families with Dependent Children program (hereinafter referred to as AFDC)...is the state program most likely to be affected by the failures and inadequacies of child support awards, and is the program by which the cost of maintaining those children adversely affected by these failures and inadequacies would otherwise be provided." Civil Code 4720(d)
California, at least, is straightforward about this consideration, which not coincidentally is a current concern of the Federal government. Put another way, California has an interest in not having to foot the bill for children whose mothers would otherwise qualify to receive AFDC payments. And there is nothing ignoble about this. There is no reason that California should have to support these children. But many states, including New York, are not nearly so up-front about this vested interest.
California at least starts out seeming to balance the interests of the State with those of both the custodial, and non-custodial parent. Section 4722 of the Agnos Act sets out a mathematical formula by which to determine the "minimum award" of child support. This formula takes a percentage of the combined income of both parents (the percentage being determined by the number of children to be supported) and arrives at a dollar amount. If that dollar amount is less then the AFDC standard for monthly necessity, then that dollar amount becomes the minimum joint child support required of that couple. If that dollar amount is higher then the AFDC standard, then the AFDC standard amount becomes the minimum support. On its own this is a nice premise. It appears to say "we have determined that it takes $X to provide minimum support for a child in this State. That is the amount below which they would be eligible for AFDC funds. As long as the parents produce at least enough income to generate $X of support, $X will be the point at which we start in terms of a child support award." This is important to note, because some states (such as New York) simply apply the percentage, and that becomes the minimum support for the child or children.
So far, this appears to be a fairly equitable way of determining child support minimums. However, once that amount is ascertained, there must be a way to determine how much of that amount each parent is expected to contribute.
Section 4722 mandates that each parent is expected to contribute a percentage equal to the percentage which their own income represents to the combined total income of both parents. So if the custodial parent's income is $10,000, and the non-custodial parent's income is $20,000, the combined income is $30,000; the custodial parent's percentage of that $30,000 is 33 percent, while the non-custodial parent's percentage is 66 percent. Hence for every $100 dollars of the minimum support required for a child, the custodial parent will be expected to contribute $33, with the non-custodial parent making up the difference of $66 in the form of child support payments to the custodial parent.
Again, this seems as if it should be fair and equitable, particularly in the case of a mother making only $10,000 while the father makes twice that. But what of the case where both parents are professionals? What if they each make the same amount of money in a year? What of the case where the mother is making $50,000, and the father is making $100,000? Is it necessarily fair that because the father makes twice as much he should contribute twice as much to the support amount? What if they make $100,000 and $200,000 respectively? What if it were reversed? What if the mother makes $100,000, and the father makes only $50,000. Is it fair that the mother only get 1/3 of the cost to raise her children from the father?
Perhaps on their face, any of the above permutations do seem inherently fair. There is another line of thought, however, that proposes that in a truly fair system, each parent would contribute half of what it costs to raise the child which they had together. While this may be impractical, and should be excepted, in the case where the custodial parent makes a minimum wage, it is not at all impractical in the instance where both parents are fully self-supporting, and could readily provide the full support of their children.
With this thought in mind, we must now consider that the non-custodial parent's payment of his percentage of support is only the minimum, to cover food, clothing and shelter. On top of this, the Agnos Act says, "[t]he court shall not assume that any other costs related to the rearing of children are provided within the mandatory minimum award. Child care expenses, special educational expenses, expenses for special medical, dental, or mental health needs, and expenses related to any other special needs of the children are not provided for...these expenses shall be considered by the court in making an award in addition to the child support obligation determined [by the formula]." Civil Code 4723.
Note that nowhere does 4723 say anything about these expenses being apportioned to each parent in a percentage equal to their income's percentage of the combined total income. Let's take our couple who both make the same amount: is it fair that they each be required to pay 50 percent of the child's minimum support? Sure it is. Is it fair that they are not required to contribute 50 percent each towards these other expenses, such as child care, medical and dental expenses? That would surely be the most fair and equitable arrangement, particularly in the case where each party produces the same amount of income.
This is one area where the courts still have a great deal of discretion, and it is easy to see how a non-custodial parent could end up with the full financial burden of these expenses. Indeed it is not at all uncommon, for example, that the father be required to maintain health insurance for the children in toto.
But the discretion of the court doesn't stop here, for the very next section of the Agnos Act states:
"Upon the request of either party, the court may award and, when appropriate, is hereby urged to award a higher amount of child support than the mandatory minimum child support award." Civil Code 4724.
What are the "other special needs of the children" provided for in 4723? When is it "appropriate" to award a higher level of support, as "urged" in 4724?
These clauses give the family courts as broad a discretion as they have ever had, the only difference being that they must assure that the mother gets at least a minimum dollar amount. But it most surely seems that in terms of a maximum amount they can take from the father, the sky's the limit.
Lest this seem like an alarmist prediction, consider the following two cases:
In the case of In re the Marriage of Von D. and Jane A. Kirk, 217 Cal.App.3d 597, 266 Cal.Rptr. 76 (1990), the Superior Court of San Diego County addresses the issue of a court's discretion in awarding child support monies above and beyond the Agnos Act formula. The court specifically held that "[the] Agnos Act formula was not intended to preclude judicial discretion to consider non-Agnos Act factors when [the] court is determining [an] amount of child support which will exceed [the] mandatory minimum child support award". In re Kirk, 217 Cal.App.3d 597.
The court goes on: "A review of the four corners of the act...convinces that it was not intended to restrict the discretion otherwise vested by sections 4700 and 4700.1 except insofar as applicable to the setting of the minimum award. In re Kirk, 217 Cal.App.3d 597, 604.
Leaving such broad, and indeed far-reaching, discretion to the courts renders impotent a "single standard" such as the Agnos Act purports to be. Indeed, except for the enactment of a minimum standard, such discretion leaves us right back where we started: with child support awards ranging from the subsistent to the ridiculous.
Witness the case of In re Smith:
In the matter of In re the Marriage of Victoria J. Smith and Clyde W. Ostler, Jr., 223 Cal.App.3d 33, 272 Cal.Rptr. 560 (1990), the appellate court, in affirming the trial courts' findings, determined that "[the mother] and the two minor children need $5,859 per month, excluding her education expense and including income taxes, to meet their reasonable needs. The [trial] court filed its order...ordering Clyde to pay Vicki a total of $5,900 per month for herself and the two minor boys, allocating $3,000 to spousal support and $1,450 to each child." In re Smith, 272 Cal.Rptr. 560, 564.
It would seem that even the most fertile imagination would be hard pressed to imagine that reasonable expenses for a minor child should amount to $1,450 a month, even in toto. How can the court possibly justify such a phenomenal amount of child support?
"Thus, in the absence of specific figures, we assume the trial court determined the reasonable needs of the two minor children, taking into consideration their right to share in their father's higher standard of living." In re Smith, p.573.
This then is how the courts can justify awarding almost any amount of child support, no matter how much beyond the actual reasonable needs of raising a child the award may be. Indeed, the Smith court goes on to say that "[t]he amount of child support rests in the sound discretion of the trial court, and an appellate court will not interfere with the trial court order unless as a matter of law an abuse of discretion is shown. In re Smith, p.574, quoting In re Marriage of Aylesworth, 106 Cal.App.3d 869, 876, 165 Cal.Rptr. 389 (1980)
With the possibility of such astronomical awards of child support, given the courts' broad discretion, how can the noncustodial parent even begin to hope that the entire amount is in fact being used to benefit his children? He can't. Not only can't he, but the language in Smith suggests that such a concern is likely to be an exercise in futility:
"Clyde's arguments that the court failed to assure that the children were the actual beneficiaries of the support and that the court should be required to make a finding that the large amount of support was in the children's best interests are intertwined. Both arguments assume that Vicki is irresponsible about teaching the children values and that she cannot be trusted to manage the child support for the benefit of the children." In re Smith, p.573.
This is alarming indeed! A request by the father that such a large amount of support be found to be in the children's best interest assumes that the mother is irresponsible about teaching values? Such a request assumes that the mother cannot be trusted to manage the support for the benefit of the children? It is difficult, and a bit frightening, to imagine what values might be taught to a minor child who is receiving the "benefits" of such a large sum of money each month.
Beyond this, the court declines to propound a judicial finding that this large amount of child support is actually in the children's best interest. How else can one construe this language, but to read it to mean that absent evidence of the mother's irresponsible manner, any amount of money put in her hands will be presumed to be in the child's best interest? A court would find it easy indeed to award any large sum of money, without any specific finding that it was in the child's best interest, by relying on the language of In re Smith.
Fourteen hundred and fifty dollars a month seems like quite a large amount, even in its own right. Contrast this to the amounts that the U.S. Department of Health and Human Services Office of Child Support Enforcement (OCSE) tell us are required to provide for a child, and it becomes ludicrous.
"Development of Guidelines for Child Support Orders", U.S. Department of Health and Human Services, September 1987, is a manual developed by an advisory panel and supported by the OCSE. It discusses and relies primarily on five models of the average expense to raise a child from birth to age 18. These are the BLS (1982), the USDA (1982), the Turchi (1983), the Olson (1983), and the Espenshade (1984) models.
Even the most generous of these models, the Olson, places the cost of raising a child at $607.76 a month for a middle-income household. The USDA places the cost of raising that same child at $372.22, with other models going as low as $283.75. A high-income household is expected to spend $924.40 a month on a single child, and $1,302.31 a month on two children, less then half the amount awarded in re Smith.
Why such variances between what is needed to provide for a child, and what is awarded as the result of judicial discretion? Why did the Legislature enact a child support standard act which sets a minimum amount which must go to the mother, but sets no maximum limit for that which may be taken from the father?
This is 2nd half of the maternal bias: the first half was "the mother gets custody", the second half is "the father gets to pay."
"The State of California has no single standard to promote equitable, adequate child support awards."
Truer words have never been placed in print.
Next month, Two personal stories
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