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Thursday, January 15
PITTSFIELD

Recently, Springfield Attorney Greg Hession filed a provocative lawsuit on behalf of fathers and families in federal court naming the state's chief administrative Judge Robert Mulligan and state trial court judges as defendants. The suit raises serious constitutional issues regarding the recently enacted Massachusetts Child Support Guidelines and appears to have much merit.

Because Judge Douglas Woodlock stated from the bench that the case should be filed in state court, he is likely to soon issue an order dismissing the lawsuit - probably on one of the overly used and judicially created abstention theories that allow federal judges to avoid hearing suits that are otherwise properly before their courts because they involve serious federal constitutional questions. Ned Holstein, head of Fathers and Families (who actually sat on the Massachusetts Child Support Task Committee) has announced that they will re-file in state court. The suit's merits should prompt a public debate.

So what is child support supposed to cover? The simplistic answer is that child support is to support the "expense" of having a child. But what are "expenses" that are associated with the children that should be borne by the father? Should the expenses just be for the "incremental" or "marginal" or "but for" cost of having a child - put another way, the cost of having a household with children minus the cost of having a household without children? This would disregard expenses such as heat, mortgage cost, electricity, car, or telephone cost that one would have to bear regardless if one did not have a child. Or should the entire cost of the household be considered since a child needs a warm home to live in and mom needs a car to buy groceries? Or should a "per capita" cost be used wherein the total cost of running a household is ascertained and then a pro rata amount determined based upon the percentage of the household that constitute the children of the divorce?

Should the "expense" of the child simply include the necessaries of life (which all parents must legally provide) or should they include non-necessaries (which parents of intact families are not legally obligated to provide)? Should the fact that the mother, by obtaining sole custody, is able to receive a whole host of government benefits enter the picture?

The answers to these policy questions call for enormously varying amounts of support. They constitute the most primary of questions making further discussion useless if left unanswered. Yet they largely go unanswered by those in charge of determining the Massachusetts Child Support Guidelines. In fact, there were so few questions answered as to what precisely should be the expenses covered by child support, let alone a determination of their actual cost, that a major component of the lawsuit was that the Child Support Guidelines are "arbitrary and capricious."

By federal regulation, which Massachusetts is supposed to follow if it wants to receive federal dollars, the actual cost of raising a child was supposed to be ascertained. Attorney Greg Hession, counsel for Fathers and Families wrote, "The New Guidelines are arbitrary, since they are not based on actual data regarding the cost of raising a child in this Commonwealth."

In fact, the Child Support Guideline Task Force Report actually states, "the economic research provides only indirect estimates of child cost, not actual cost." They even went so far as to say, "the Task Force determined that isolation of the specific household cost attributable to the child. . . is neither necessary nor appropriate."

Making matters worse, the Legislature shirked its duties and asked the judicial department to determine the levels of child support by a statute, and did not provide them with even broad parameters to follow, creating what lawyers call an "improper delegation" issue. In most states the Legislature determines the amount of child support. Under Article 30 of the Massachusetts Constitution, there is supposed to be a separation of powers and the judiciary is not supposed to be performing legislative functions. The lawsuit correctly notes that "the entire extent of legislative guidance is only an oblique reference which requires that courts shall apply the guidelines promulgated by the Child Justice For Administration And Management."

When I spoke to Ned Holstein, he indicated that "radical increases in child support have been issued by a single judge, unelected, not accountable to anyone and without explanation, just as people are losing jobs and income in a severe recession." He added, "We need to put child support in the hands of elected officials."

Massachusetts has the highest child support in the nation, is one of a handful of states that has child support beyond age 18, is only one of two states that has child support until age 23, and leaves the children of second families impoverished. Of all the parents who spoke at the hearings held around the state by the committee, nearly all spoke in favor of lowering the drastic levels of child support.

All good law is created by a Legislature that has painstakingly considered the policies it would like to achieve, that has properly garnered the relevant data, and has meaningfully listened to the people rather than merely pretended to do so.

Rinaldo Del Gallo, III is a family law attorney, spokesperson of the Berkshire Fatherhood Coalition, and a columnist.