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Child Support - Federal Mandate

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


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)

 [excerpt taken from


Keywords: child federal manadate support

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