A fugitive people within a nation is tyranny.

Posts tagged ‘Georgia’

Fed Creates Fugitives From Multitudes of Disadvantaged Dads

Just as Georgia parents begin to challenge the law, the Federal government steps up to bat with parading a new initiative.

violation of due process and civil rightsThe federal government is stepping up its efforts to track down parents who refuse to pay child support through a program inappropriately named “Project Save Our Children,” which targets anyone that owes more than $5,000. If you know of any children this program will save, you can post this information below. You can also let us know why you believe this program is inappropriately named.

This glorious program includes listing names on a new website specifically to track them down. “Strengthen and Vitalize Enforcement of Child Support (SAVE Child Support) Act,” was introduced by New Jersey Senator Robert Menendez and Senator Chuck Grassley from Iowa. Now you know who the enemies of Constitutional freedom really are. This doesn’t count those that passed the bill.

This law is reportedly designed to:

• Create a national registry to make liens against property easier to track
• Make it easier for states to intercept income and revoke licenses and permits
• Deny passport reinstatement until a parent has paid their arrears in full
• Encourage state support agencies to communicate with corrections agencies to better collect on orders

“You’re talking about a willful intent to avoid paying for your children, for their livelihood, for providing the basics that they so deserve,” said Health and Human Services Deputy Inspector General Gerald Roy. The program is reported have seen some success, and they have been able to get a few parents who owed more than $100,000 to pay up. The matter of oppressing the disabled, underemployed and unemployed isn’t considered. It’s corporate and state exploitation on a grand scale… and most Americans are completely ignorant.

While federal employees themselves don’t go out on the hunt for child support ‘evaders,’ the government does play a key role in requiring that states take certain measures. Title IV-D of the Social Security Act of 1975 mandates and funds corporate enforcement offices. These offices are responsible for helping custodial parents locate ex-spouses, establishing paternity, establishing support orders and enforcing those orders. The federal Office of Child Support Enforcement, part of the Department of Health and Human Services, provides centralized resources for the states, by collecting information from the IRS, Social Security Administration and other agencies. This website believes that this money would be better spent buying down the national deficit or actually benefiting Americans instead of imprisoning and harassing citizens under the pretense of helping children.

Fathers Challenge Child Support Orders

by CBS Atlanta

captiveA group of fathers in Georgia is targeting the state’s practice of putting parents who can’t afford to pay child support in jail. Rightly, they should, as current law in merely an inquisition, having eliminated any rights that a non-custodial parent has per the much heralded national Constitution.

The five fathers claim in a lawsuit that jailing parents who can’t afford to pay child support creates a modern day debtor’s prison because parents. They say parents who are put behind bars lose their jobs, making it even more difficult to pay up.

The fathers want to force Georgia to provide them attorneys at child support hearings. They say that could prevent the incarceration.

Attorneys for the state say the judges are just using the law for the worst offenders.

The dads recently won a court battle when a judge allowed thousands of other parents who were imprisoned for failing to pay the child support join their lawsuit.

For more on the appeal by state attorneys click here.

Georgia Appeals Child Support Ruling


ATLANTA — State attorneys are appealing a judge’s order that favored five fathers who are targeting Georgia’s practice of jailing parents who don’t pay child support.

The Georgia Attorney General’s office on Monday filed a motion that said there’s an “epidemic” of parents who fail to pay their child support. It said the men were jailed because of the “consequences of their own poor decision-making.”

The five fathers claim in the lawsuit that jailing parents who can’t afford to pay child support creates a modern day debtor’s prison. They want to force Georgia to provide poor defendants with attorneys at child support hearings.

The men recently won a court battle when a judge allowed thousands of other parents who were imprisoned for failing to pay the child support join their lawsuit.

by Associated Press
original article removed from the www.

Fathers Challenge Jail Sentences for Child Support

by Greg Bluestein
Associated Press

captiveAfter Lance Hendrix returned from military service in 2009, he landed part-time construction work and odd jobs to help pay the child support he owed for his daughter. He managed to pay about $3,800, but when he couldn’t afford to the rest, a judge threw Hendrix in jail for four months.

The 24-year-old is one of five fathers behind a legal challenge targeting a law that allows judges to put parents in jail if they can’t make child support payments. The dads say it perpetuates a disastrous cycle, as the parents wind up losing their jobs, making it harder for them to pay up. The lawsuit aims to force Georgia to provide the parents attorneys at hearings so they can better defend themselves.

“They’re putting people in jail that have no means of even supporting themselves,” Hendrix said. “Who’s going to want to hire me from jail? ‘Hello, my name is Lance Hendrix and I’m currently an inmate in Cook County Jail. Would you mind hiring me?’ Yeah right.”

Imprisoning parents over child support payments has become routine in Georgia. At least 3,500 parents have been jailed in child support cases without being provided attorneys since January 2010, according to court records. In October 2011, 845 parents were jailed in Georgia for child support proceedings.

“We absolutely have a modern day debtor’s prison,” said Sarah Geraghty of the Southern Center for Human Rights, the Atlanta-based organization representing the fathers. “They are forgotten about. And in many instances, the parent is sent to jail and they’re called back into court only when someone remembers that they’re there.”

The Georgia attorney general’s office and the state’s Department of Human Services declined comment on the litigation. In court filings, state attorneys said the lawsuit was unnecessary because parents could avoid incarceration by appealing the contempt orders that send them to jail. State attorneys also said locking parents up is a last resort to hold parents accountable.

If the lawsuit prevails, it could bring big changes to Georgia’s legal system, forcing the state to set aside potentially millions of dollars to pay for lawyers for the parents. Geraghty said she also hopes it could bring a shift in tactics, prodding the state to garnish the wages of delinquent parents or put liens on their property rather than incarcerate them.

“The problem that we see in Georgia is the state often uses incarceration as a first resort rather than a last resort,” she said.

The five fathers cleared a major hurdle recently when a judge granted class-action status, allowing thousands of other indigent parents who were imprisoned to join the lawsuit. The December order, by Fulton County Superior Court Judge Jerry Baxter, only applies to those who can’t afford to pay for an attorney, not those who can hire one but choose not to do so.

The sentences given to the parents — some have spent more than a year in jail — are a result in a quirk in Georgia law. Anyone charged with criminal contempt has the right to an attorney and can only be imprisoned for 20 days. But child support hearings are civil matters, and parents charged with contempt in those cases are often jailed for far longer, without counsel.

Georgia is one of four states that don’t require indigent plaintiffs facing jail in child support cases to be appointed attorneys. The state, meanwhile, often has experienced lawyers.

The U.S. Supreme Court issued a ruling in June holding that indigent parents don’t have the right to counsel in a child support hearing where the state wasn’t involved . But this lawsuit says there are thousands of cases in Georgia untouched by the ruling because the state represents the other side.

The plaintiffs and the other parents who could join the class-action lawsuit are a diverse group that includes military veterans, immigrants, the homeless and even a pregnant woman.

One is 40-year-old Randy Miller, a veteran of the Iraq war who has paid about $75,000 in child support for his two daughters over the years. He lost his job at AT&T and then lost his home in 2010, and at one point had as little as 39 cents in his bank account.

He was jailed for three months when he was unable to pay his $800 obligation. He was released in February 2011, but still owes money and fears he could be jailed again.

Hendrix is now working odd jobs, helping renovate restaurants and build furniture. He’s taken to buying canned foods from discount stores rather than fast food. He relies on help from family to pay some bills.

But it’s still not enough to pay the $480 he owes his ex-wife each month for their 5-year-old daughter, so he risks being incarcerated again.

“It’s an impossible situation,” he said. “And I can’t find a job when I’m in jail.”

this article is as it appeared in the Washington Examiner

US Constitution Not Applicable to Veterans

Those unable to pay child support can end up jailed without trial
by Jonathan Benson – Natural News

baby moneyDelinquent U.S. parents who fail to pay court-ordered child support, regardless of their circumstances, are not subject to the same constitutional protections as those charged with violating other laws. Even war veterans who have faithfully fulfilled their child support obligations for many years, but have suddenly lost their jobs or have otherwise come upon legitimate hard times, can be jailed without a trial — and in some states, they can even be thrown in prison arbitrarily without any sort of legal representation.

MSNBC reports that while most cases of child support delinquency are presumably due to parents simply not wanting to pay, some cases involve a legitimate inability to pay. But as far as many court judges are concerned, the simple act of not paying is enough to warrant prison time, regardless of the situation. And for some down-and-out veterans, this has made their already difficult lives even worse.

“I felt that with my payment history and that I had just started working, maybe I would be able to convince the judge to give me another month and a half to start making the payments again,” said 39-year-old Randy Miller, and Iraqi war veteran, to MSNBC. Miller had faithfully paid child support for more than ten years, but unexpectedly lost his job in 2009.

Miller was recently hired in a new position, and had made this fact aware to the Floyd County, Ga., judge that presided over his recent court appearance, noting that he would soon be able to start making payments again. But the judge apparently did not care much for Miller’s situation, and “went ahead and decided to lock [him] up,” where he remained for three months.

A similar situation occurred to 58-year-old Thomas Ball, a father and military veteran from New Hampshire, who had also faithfully paid child support for years, but lost his job unexpectedly. But in Ball’s case the situation ended in tragedy when, out of desperation, he doused himself in gasoline and lit himself on fire in front of the Cheshire County Court House where he was to be sentenced to prison for his inability to pay.

These and many other cases of unconstitutional, not to mention compassionless, acts of supposed justice in enforcing child support laws are an affront to honest, hard-working individuals — many of whom are veterans — that come upon difficult times outside of their control. Rather than be treated like guilty criminals, the law must be modified to recognize the difference between inability and indifference.

Unable to Pay Child Support, Poor Parents Land Behind Bars

Judges can jail alleged defaulters — who are not covered by the presumption of innocence — without a trial

by Mike Brunker

from MSNBC September 19, 2011


Barack Obama

It may not be a crime to be poor, but it can land you behind bars if you also are behind on your child-support payments.

Thousands of so-called “deadbeat” parents are jailed each year in the U.S. after failing to pay court-ordered child support — the vast majority of them for withholding or hiding money out of spite or a feeling that they’ve been unfairly gouged by the courts.

But in what might seem like an un-American plot twist from a Charles Dickens’ novel, advocates for the poor say, some parents are wrongly being locked away without any regard for their ability to pay — sometimes without the benefit of legal representation.

Randy Miller, a 39-year-old Iraqi war vet, found himself in that situation in November, when a judge in Floyd County, Ga., sent him to jail for violating a court order to pay child support.

He said he was stunned when the judge rebuffed his argument that he had made regular payments for more than a decade before losing his job in July 2009 and had recently resumed working.

“I felt that with my payment history and that I had just started working, maybe I would be able to convince the judge to give me another month and a half to start making the payments again,” he told msnbc.com. “… But that didn’t sit too well with him because he went ahead and decided to lock me up.”

Miller, who spent three months in jail before being released, is one of six plaintiffs in a class-action lawsuit filed in March that seeks to force the state of Georgia to provide lawyers for poor non-custodial parents facing the loss of their freedom for failing to pay child support.

‘Debtors’ prisons’?
“Languishing in jail for weeks, months, and sometimes over a year, these parents share one trait … besides their poverty: They went to jail without ever talking to an attorney,” according to the lawsuit filed by the nonprofit Southern Center of Human Rights in Atlanta.

While jailing non-paying parents — the vast majority of them men — does lead to payment in many cases, critics say that it unfairly penalizes poor and unemployed parents who have no ability to pay, even though federal law stipulates that they must have “willfully” violated a court order before being incarcerated.

They compare the plight of such parents to the poor people consigned to infamous “debtors’ prisons” before such institutions were outlawed in the early 1800s.

“I try very carefully not to exaggerate, but I do think that’s an apt comparison,” said Sarah Geraghty, the attorney handling the Georgia case for the Southern Center for Human Rights.

“And I think anyone who went down and watched one of these proceedings would agree with me. … You see a room full of indigent parents — most of them African-American — and you have a judge and attorney general, both of whom are white. The hearings often take only 15 seconds. The judge asks, ‘Do you have any money to pay?’ the person pleads and the judge says, ‘OK you’re going to jail,’” she added.

The threat of jailing delinquent parents is intended to coerce them to pay, but in rare cases it can have tragic results.

In June, a New Hampshire father and military veteran, Thomas Ball, died after dousing himself with gasoline and setting himself ablaze in front of the Cheshire County Court House.

In a long, rambling letter to the local Sentinel newspaper, the 58-year-old Ball stated that he did so to focus attention on what he considered unfair domestic violence laws and because he expected to be jailed at an upcoming hearing on his failure to pay up to $3,000 in delinquent child support, even though he had been out of work for two years.

The ability of judges to jail parents without a trial is possible because failure to pay child support is usually handled as a civil matter, meaning that the non-custodial parent — or the “contemnor” in legal terms — is found guilty of contempt of court and ordered to appear at a hearing.

He or she is not entitled to some constitutional protections that criminal defendants receive, including the presumption of innocence. And in five states — Florida, Georgia, Maine, South Carolina and Ohio — one of the omitted protections is the right to an attorney.

Randall Kessler, a family law attorney in Atlanta and chairman of the American Bar Association’s family law division, said states have a great deal of leeway in family law, which includes child support cases.

“The main reason states are patchwork is because family law is a local idea,” he said. “It’s very infrequent that the federal government gets into family law, except for international custody every now and then and violence against women. … Each community’s laws are different in the way they treat child support collection, and the right to a lawyer and the right to a jury trial varies.”

Supreme Court: No right to a lawyer
The child support program currently serves approximately 17 million U.S. children, or nearly a quarter of the nation’s minors, according to a recent study by Elaine Sorensen, a senior fellow at the Urban Institute.

Critics of incarceration without representation had hoped that the U.S. Supreme Court would end the practice in its ruling in Turner v. Rogers, a case involving a South Carolina man who was repeatedly jailed for up to a year after failing to pay child support.

But the court ruled 5-4 in June that poor parents are not entitled to a court-appointed lawyer when facing jail for non-payment of child support. Instead, the justices said, states should use “substantial procedural safeguards” to ensure that those who have no means to pay are not locked up.

That is likely to force the states that don’t guarantee the right to an attorney to tighten their policies, said Colleen Eubanks, executive director of the National Child Support Enforcement Association, which represents state agencies. “Obviously they’re going to have to look at changing the rules,” she said.

Ken Wolfe, a spokesman for the federal Administration for Children and Families, which imposes some rules on state child support enforcement agencies in exchange for funding, said the agency expects to issue guidance to the states next month regarding the Turner case. He declined to provide any details.

But Libba Patterson, a law professor at the University of South Carolina and a former director of the state Department of Social Services, said the Supreme Court ruling provides “very weak protections” for poor parents and is unlikely on its own to solve the problem of wrongful incarceration of poor parents.

“It depends on the extent to which the court is truly interested in making a full inquiry on the ability-to-pay issue and on the resources the court has and the amount of judicial time,” she said.

Even in states where the non-custodial parents do have the right to a lawyer, those without the financial resources to meet their child-support obligations still frequently land in jail.

A 2009 study by the Urban Institute, a nonpartisan policy think tank in Washington, D.C., found that only half of the child support debtors in California prisons had reported income in the two preceding years. And the median net income of the others was a mere $2,881.

65 percent of paycheck taken
Geraghty, the Southern Center for Human Rights attorney, said part of the problem is that courts often order poor parents to pay too much for child support in the first place, increasing the likelihood that they will fall behind on payments.

“One of my former clients worked at the Piggly Wiggly (supermarket) and they were taking 65 percent of her paycheck,” she said. “It left her in a position where there was simply no way that she could survive on the amount that she had left.”

No one can say how many parents are jailed each year for failing to pay child support, because states typically do not track such cases.

But an analysis of U.S. Bureau of Justice statistics in 2002 by the Urban Institute’s Sorensen found that approximately 10,000 men were in jail for non-payment of child support, representing 1.7 percent of the overall U.S. jail population.

Most observers believe that number has risen as a result of the troubled U.S. economy.

In fiscal 2009, the most recent year for which statistics are available, the Child Support Enforcement program saw child support collections decline for the first time in the history of the program, dipping 1.8 percent, the GAO reported in January.

At the same time, payments collected from unemployment insurance benefits nearly tripled, and the number of cases in which children were receiving public assistance also rose.

Military veterans, who often struggle to find work when they leave the service, appear to be particularly at risk.

Lance Hendrix of Adel, Ga., an Army veteran, said he fell behind on child support for his 4-year-old daughter after he left the service and couldn’t find work.

“I was arrested and I went to jail and they asked me all sorts of questions,” said Hendrix, who also is a plaintiff in the Georgia lawsuit. “I was never told I was under arrest. And I was never read my rights. So I did not know what rights I had. Of course, I’ve seen all these movies, but half that isn’t true.”

Not having a lawyer in a civil contempt hearing increases the likelihood that the parent will be jailed, even if he or she is not guilty of “willfully” defying the court’s order, say critics of the policy.

‘Wrongfully imprisoned’
“In the absence of counsel … it appears that the opportunity to raise the defense is often missed, and large numbers of indigent parents are wrongfully imprisoned for failure to meet child support obligations every year,” according to a friend-of-the-court brief filed in the Turner case by the American Civil Liberties Union and other groups.

The deck is further stacked against the delinquent parent because the state often acts as the plaintiff, seeking to recover the cost of providing public assistance to the child, Geraghty said.

Officials of Georgia’s Child Support Services agency declined to comment on the state’s child support enforcement policies or the lawsuit.

But Seth Harp, a retired Georgia state senator and former member of the state’s Child Support Guidelines Commission, said the state’s judges use incarceration sparingly.

“The methodology to put someone in jail requires that the person be taken to court before a judge and there they have to be found in willful contempt — someone who actively refuses to seek work or is hiding assets, something like that,” he said. “Judges don’t want to put people in jail. … The whole purpose is to get these people to support their children.”

Harp said he’s seen the tactic work repeatedly in his long career as a family law attorney.

“You can’t get blood out of a turnip, but you can put the turnip in the cooler,” he said. “And in 34 years of doing this, it’s amazing, you put someone in the cooler and the money seems to come.”

Judge Janice M. Rosa, a supervising court judge in New York’s 8th Judicial District and a board member of the National Council of Juvenile and Family Court Judges, said the system in her state adequately protects non-custodial parents by guaranteeing them a court-appointed lawyer if they cannot afford one and carefully determining that they have the ability to pay.

“No one here is going to jail when a factory closes down and you’re one of hundreds looking for a job,” she said. “… Every state has said that debtors’ prisons are illegal, and you have to give these people a way out. You can only put them in jail if they have money and won’t pay.”

Attempt to assist both parents
Eubanks, the National Child Support Enforcement Association official, said state programs in general are doing a better job in recent years of ensuring that the poor aren’t unfairly locked up by instituting programs to help non-custodial parents improve work, life and parenting skills.

“Five to 10 years ago, the program was pretty much about enforcing support. But now it’s moving to the understanding that if parents are going to support their children, they need assistance,” she said. “Our philosophy is to provide whatever tools we can to both parents to support their children.”

She also said the recent Supreme Court decision prompted the association to conduct training and outreach to ensure that state agencies are aware of the issue and have adequate safeguards in place to prevent indigent parents from being wrongly jailed.

That is no comfort to Miller, the Iraq war veteran who was jailed for three months. He said jailing parents who fall behind on their payments is counterproductive and should be reserved for only the most egregious violators.

“I feel like it’s more unfair to the kids, because now not only do the kids not get any money, nor do they even get to spend time with their fathers once they get locked up,” he said. “The closest you can get is visitation, and who wants their kids to see them behind bars or behind glass.”


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Child Support Guidelines Unconstitutional

Most that have an interest in child support issues are aware of the fact that child support, almost without exception, has little to do with common sense. It has everything to do with burdening non-custodial parents with a punitive tax that pretends to look after “the best interest of the children,” a tax that instead has the primary goals of:

* Giving custodial parents, usually mothers, a financial incentive to take their children and walk out of their marriages, most likely to expunge their children’s fathers from their children’s lives
* Punishing non-custodial parents, usually fathers, often to the point where they become destitute and commit suicide
* Funding the growth and existence of a massive bureaucracy intended for the collection and distribution of child support money.

Radical forces are behind the creation and furtherance of the child support industry, by no means the only force driving the system.

Radical forces see little value in having fathers involved in the lives of children and appear to be using child support legislation as a deterrent that is nothing other than a tool for the destruction of the families in this nation or to prevent their formation.

Child support legislation has become an incentive for a lucrative business, not only for the child support collection industry but also for lawyers. In the lower courts, about 40 percent of all cases heard deal with child support and child access issues. In the higher courts, such as the Ontario Superior Court, 80 percent of the case load deals with those issues.

The financial incentives are substantial for custodial parents to file for divorce and to claim the children of their marriages or even extramarital children as cash prizes and inexhaustible sources of income.

Child support guidelines seem to reflect an international consensus. They are much the same the world over and cause enormous devastation of family assets the world over. Some child support awards have reached truly astounding levels.

Not one constitutional challenge launched by fathers has ever been successful as of this date. That may well have been because these challenges were launched by men, whereas women usually had little to complain about, because the implementation and application of punitive child support guidelines generally affected only men.

What makes the child support guidelines especially onerous is that child support guidelines generally do not take into account the combined incomes of both parents and do not allocate equitable shares of the costs of child raising to both parents.

Usually the guidelines are designed or applied to only the gross income of a non-custodial parent when calculating child support amounts to be paid. Not only are the guidelines in general applied only to the non-custodial parent’s income, but not even the costs of child care by the non-custodial parent are taken into account when child support award amounts are calculated, unless child custody is equally shared between the parents of a child. However, even then there is a net flow of cash from the higher-income-earning parent to the lower-income-earning one, little objectivity is being applied in how the amounts to be transferred are to be calculated.

There is always the cash prize of having primary custody. In Canada, for example, considerations of the costs of child-raising to the payor-parents are not taken into account unless their children are in their care for more than 40 percent of parenting time. The parents who receive the primary custody awards will therefore often do their very best to make sure that the share of parenting time for the payor-parents will stay below the magical 40 percent figure, to receive the maximum benefits calculated on the basis of the child support guidelines that were written so as to favor them enormously.

Along comes one of the rare cases of a mother who was ordered to pay child support to the custodial father of the children she had with him. Unlike many men, for whom the child support amounts to be paid often approach and exceed the total amount of money they earn, this Georgia mother, Michelle Sweat, merely had to pay the amount of $531.30 out of her monthly gross income of $1,585.95. However, she was ordered to pay that amount contrary to the agreement she had made during her divorce from the father, namely that she was not required to pay child support.

Subsequently, the mother’s monthly gross income rose to $1,862. Her expenses totaled $2,127.00 at that time, and she filed for bankruptcy under chapter 13, following which her payments to the Chapter 13 Trustee were set at $295.00 per month. That monthly payment had apparently not been considered in calculating the child support amount she had been ordered to pay. She filed a constitutional challenge.

On February 25, 2002, the Honourable C. Dane Perkins, Judge of Superior Court, Alapaha Judicial Circuit, State of Georgia, agreed with her challenge.

The points discovered in the FINDINGS OF FACT are as follows:

The Guidelines adopted by Georgia as originally designed by the underlying economic study were intended only for welfare situations – the current use for all situations was not the intended purpose. The underlying facts of the original presumptions no longer exist. The presumptive percentages were based only on data for low-income cases and were extended without the benefit of data for non-welfare cases….

Georgia’s presumptive awards rise as a share of obligor after-tax income. No child cost studies show child costs rising as a share of after-tax income. All child cost studies show child costs declining as a share of after-tax income. The state has presented no evidence that child costs rise as a perc[e]ntage of household net income. ….

There are no baseline components to the Guidelines. It is not clear what is being rebutted, therefore they are arbitrary and a due process violation.

The Guidelines do not take into account the large tax-related child cost offsets the custodial parent receives. ….

The presumptive award results in the custodial parent receiving a huge financial windfall – or profit – in excess of child costs. ….

The Georgia presumptive award does not allocate the child support burden according to the parents’ relative ability to pay. The outcome is that the custodial parent does not contribute to child costs at the same rate as the non-custodial parent and often, not at all.

Evidence presented shows that the Guideline presumptive awards include such large amounts of hidden alimony (presumptive award less an economics based award) that a non-custodial parent is unable to provide for a child when in the non-custodial parent’s care to the same extent as in the custodial parent’s household. Presumptive awards have been shown to typically exceed total actual costs [of child raising] according to the U.S. Department of Agriculture….Such excessive child support awards are not in the best interest of the child…[and] leave[] the non-custodial parent in poverty while the custodial parent enjoys a notably higher standard of living.

The Guidelines are biased toward including hidden alimony for the custodial parent even when the custodial parent earns substantially higher gross income than the non-custodial parent. The Guidelines do not meet standards of fairness even for alimony….

The use of a range of percentages allows substantial opportunity for similarly situated individuals to receive dissimilar treatment. That is, different obligors with the same income can end up with presumptive obligations that differ by hundreds of dollars per month….

The presumptive award for low-income obligors (for example, minimum wage workers) pushes low-income obligors below the poverty level. A presumptive award that leaves the obligor with less income than needed for basic living needs creates an extraordinary burden for the obligor and, potentially, an additional burden on taxpayers. This violates equal protection. This is contrary both to public policy and common sense.

The Guidelines do not take into account custodial parent income. The presumptive child support award does not vary with family income – only obligor income. This is not economically rational and violates equal protection….

Child costs of only the custodial parent are covered by the Guidelines. Similar costs incurred when the child is with the non-custodial parent do not receive similar consideration….Each parent has an equal duty to provide financially for the children when in the care of the other parent….in actual practice, typically the non-custodial parent is not absent and incurs substantial child costs that the guidelines do not require the custodial parent to contribute. This violates equal protection and does not meet the financial needs of the children when they are in the care of the non-custodial parent…

Medical insurance costs are not treated the same for all obligors. The presumptive award includes typical medical expenses. The Guidelines allow the court to either treat an obligor’s payment of the children’s medical insurance as an add-on or as a credit toward the presumptive award. This dissimilar treatment violates equal protection….The difference between these alternatives is $140 per month for the obligor [in this case Michelle Sweat].

The Guideline criteria for deviation do not give any guidance on how to apply the deviations in a consistent manner. This is unconstitutionally vague and generally results in no deviations in most cases – even when the circumstances to deviate exist.

The Guidelines are arbitrary and bear no relationship to the intended federal purpose of determining an economically appropriate child support award. The Guidelines have no rational relationship to child cost data….The Guidelines do not take into account where the actual child costs are incurred – that is, which parent incurs what costs. The Guidelines do not take into account child costs net of tax benefit offsets.

The Guidelines bear no relationship to the constitutional standards for child support of requiring each parent to have an equal duty in supporting the child.

Which parent is the obligor and which is the obligee should be determined only after examination of the relevant factors – not before. The financial circumstances should determine which parent is obligor. The Guidelines arbitrarily presume that the obligor is always the non-custodial parent when the financial circumstances may indicate just the opposite. Importantly, mere classification before-hand of the obligor does not provide sufficient information to determine the economically appropriate award. The classifications of obligor and obligee are not rationally related to the intended purpose of the Guidelines of determining the economically appropriate award.

The Guidelines interfere with a non-custodial parent’s constitutional right to raise one’s children without “unnecessary” government interference. The Guidelines are so excessive as to force non-custodial parents to frequently work extra jobs for basic needs – detracting from parenting without state justification. Low-income obligors are frequently forced to work in a cash economy to survive as a result of child support obligations that if paid push the obligor below the poverty level. This is the result of automatic withholding of child support with payroll jobs and use of guidelines that presumptively push minimum wage obligors below the poverty level. As these workers are forced to “disappear” into unofficial society, these obligors are deprived of the constitutional right to raise their children without unnecessary government intrusion. In fact, any government mandate beyond basic child costs interferes with this right to privacy as occurs with the current guidelines.

For the current case, the presumptive award pushes Ms. Sweat, the obligor, to just above the poverty level and below the poverty level if she pays court ordered bankruptcy payments. This is an extraordinary burden imposed on the obligor by the Guidelines.

In the present case, the earnings of the obligee, Samuel Sweat, significantly exceed those of the obligor. Nonetheless, the guidelines require the obligor, Michelle Sweat, to pay out a significant amount of her before tax income to the obligee, to whom this money will be tax free. The income of the obligee will be considerably increased, and he will have the tax advantages attendant to being a custodial parent. Additionally, the obligee will have the additional benefit of his new spouse’s earnings. In the meantime, the obligor’s net earnings will probably put her at or below the poverty line, and will in any event leave her with less than half of her earnings to live on. This scheme thus constitutes a windfall to the obligee and financial disaster to the obligor.

Any calculation of a support award under the Guidelines would be so far removed from any economically rational and appropriate award that it constitutes a gross error well beyond any “mere imprecision.”

(Without any doubt, these circumstances are much the same in Canada and elsewhere.) Judge Perkins of the Georgia Superior Court then covered in his decision the constitutional issues to be considered with respect to the evidence assessed in the Finding of Facts and with respect to issues of Due Process [of the law] according to precedents.

It is remarkable and refreshing to see a judge state the issues at hand so clearly and so precisely:

….Given the very nature and purpose of the Guidelines, this Court finds that there is an overriding governmental pecuniary purpose involved. D.H.R. v. Ofutt, 217 Ga. App. 823 at 825 (1995).

This Court finds that the Guidelines were hastily enacted and left unchanged without sufficient examination of relevant economic data and for those reasons as well as the gross deviation from all child cost studies as noted previously, finds them to be arbitrary and capricious. See, Sierra Club v. Martin, 168 F. 3d 1 (11th Cir., 1999).

With all due respect to the members of the Governor’s Commissions on Child Support (hereinafter, the “Commission”) in both 1998 and 2001, it is clear that only one member in 1998, Mr. Mark Rogers, and none in 2001 were properly qualified by education, background and experience to accurately assess the economic and financial intricacies of the Guidelines. This, too, the Court finds to be indicative of arbitrary state action.

….This Court finds that this constitutes further proof of arbitrariness on the part of the State and, if left in place, may rise to a volitional violation of the constitutional protections afforded the citizens of this State.

With respect to issues of equal protection, judge Perkins stated:

….The egregiously different burdens and benefits placed on persons similarly situated but for the award of custody, i.e., parents with the obligation to support their child(ren) and the same means for doing so as when they were married, has been explained at length above. This Court finds that such disparate treatment violates the guarantees of equal protection….

Relating to the right to privacy, he stated:

…it has been long recognized to apply to “family” concerns whether the family exists within the confines of marriage or not….

….by requiring the non-custodial parent to pay an amount in excess of those required to meet the child’s basic needs, as the economic analysis has shown, the Guidelines impermissibly interfere with parental decisions regarding financial expenditures on children….

In regard to unconstitutional taking of property, he stated that the state-induced poverty in which Michelle Sweat finds herself will prevent her from being able to afford to buy the court transcripts that she’ll need, if required, to make an appeal, and therefore ordered the State of Georgia to pay for the required transcripts.

Furthermore, he stated that, in “seeking to impose an award under the Guidelines against Ms. Sweat for the purpose of the state continuing to receive federal funds,” Georgia’s Department of Human Resources’ action “constitutes a public taking for a public purpose.”

About recent supporting foreign opinion, the judge stated:

One issue of equal protection is taking into account all of an obligor’s dependents – not just those involved in the instant case…..Any formula for deviation on this matter that Georgia DHR may have is not presumptive, is not statutory, and is not applied statewide in all cases in which an obligor has additional dependents other than those in the instant case….Guidelines without such presumptive formula likewise violate equal protection requirements as related to multiple family situations and are unconstitutional.

With respect to the constitutionally acceptable child support standard, the good judge stated that,

This Court finds, as a matter of law, that a constitutionally sound standard for the determination of child support guidelines can readily be determined.

First, it must acknowledge the principle …that both parents are obliged to support their children in accordance with their relative means to do so. The Supreme Court of the United States has provided ample reason to conclude that any guideline discriminating against either parent would be found constitutionally defective….The decisions of our sister States in holding unconstitutional statutory presumptions that custody of children of “tender years” should be awarded to the mother is also persuasive….Procreation is both a joint act and a joint responsibility.

Secondly, it must conform to long-acknowledged limitations on government intrusion into the rights of families….That is, the government’s interest in family expenditures on children, whether that family exists before or after the dissolution of marriage, or even in the absence of marriage, is limited to insuring that the children’s basic needs are met. Not extravagances, not luxuries, but needs. Once that occurs, government intrusion must cease….

The third and final criteria is that the means chosen for the purpose of determining need and allocating each parent’s respective responsibility in meeting that need, whether in the form of a presumptive guideline or otherwise, must be based on a rational relationship between the predicate facts and the conclusion(s) directed….

This standard is not dissimilar to the former needs vs. ability to pay standard, but with the additional criteria that the needs are not excessive, the ability to pay is that of both parents and that the method of calculation is economically rational.

As explained above, the Guidelines fail miserably in meeting these standards.

In light of the Georgia child support guidelines being unconstitutional, Michelle Sweat shall not be required to pay Samuel E. Sweat any child support based upon her gross income of $1,862 per month, the father’s gross income of $2,647.50 per month, and the mother having parenting time with the children at least 20 percent of the time. The mother shall, however, continue to provide health insurance for the children which currently costs approximately $70 per month for so long as it is available through her employer. The mother shall also pay 14.3 percent of any unreimbursed medical expenses of the children that exceed $250 per year. This percentage is based on her share of combined income above self-support needs.

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