The Two "ICS" of the 2001 Louisiana Child Support Guidelines: Economics and Politics

• Author: Katherine Shaw Spaht
• Position: Jules F. and Frances L. Landry Professor of Law
• Pages: 710-771

Page 710

Jules F. and Frances L. Landry Professor of Law. The author served as Chairman of the Task Force to Revise Louisiana's Child Support Guidelines. She wishes to acknowledge and thank three of the most dedicated public servants it has been her pleasure to know-Lisa Woodruff-White of the Department of Social Services, Cynthia Guillory of the Louisiana District Attorney's Association, and Jessica Braun, staff attorney for the House Committee on Civil Law and Procedure. The author also wishes to thank Representatives Jackie Clarkson (lead author of House Bill No. 1398) and Emma Devillier; Senators Noble Ellington and Tom Schedler; and the faithful members of the Task Force who attended meetings and testified.

I Introduction

Against the backdrop of the following statistical and political information, the Louisiana Legislature in 2001 deliberated the comprehensive revision of Louisiana's child support guidelines:

1. Of the children born in Louisiana the preceding year, 45 percent were born out of wedlock.¹

2. Louisiana was ranked second among states and the District of Columbia in child poverty, first the year before.²

   Page 711

3. Although divorce rates have leveled off nationally during the last five years, they remain at historically high levels and the vast majority of divorces nationally occur within the first nine years of marriage involving in many cases minor children.³

4. LA Dads, an organization of Louisiana fathers who pay child support and object to many of the provisions of Louisiana law that affect them and their children, made their first political appearance.

   Thus, no legislator could argue that the subject did not affect his constituents, many of whom are the most vulnerable of Louisiana's citizens, its children. Yet, the citizens of the United States have become increasingly less child-centered in their concerns and interests and far more adult-centered;⁴ they are less interested in how Page 712 policy decisions affect children and more interested in how they affect adults.⁵ Such citizen attitudes have an impact⁶ when child support guidelines are discussed; debate focuses far too often upon how the adult payor or payee is affected rather than the child, as well as upon the desire of the adult payor to "move on" with his life⁷ and concentrate his resources on his "new" family, whether biologically related or not.⁸

   These significant attitudinal changes surfaced during the legislative deliberations on the revision of the child support guidelines. When the guidelines were first proposed and debated in 1989, one discussion focused on the effect of numerical child support amounts on children because the broad consensus was that, at least where divorce was concerned, a parent does not divorce his children who deserve protection from a decision made by one or, far less often, by both of her Page 713 parents to dissolve the family. In fact, the 2001 legislation contains language to that effect.⁹ Nonetheless, despite the worsening condition of Louisiana's children, contrary views emphasizing adult concerns at the expense of concerns for the children¹⁰ were ardently expressed, views, reflecting these deep attitudinal changes. The contrast between discussions and debates in 1989 and those in 2001 were particularly striking; 2001 was the first time since their enactment that the legislature concentrated on a comprehensive review of the guidelines. What was the reason for the significant lapse in time? The Louisiana Legislature had simply failed to review and revise the guidelines every four years as it is statutorily directed to do.¹¹ Act No. 1082 of 2001 constituted the culmination of the first comprehensive revision of Louisiana's statutory guidelines and numerical schedule since their enactment.¹²

   Page 714

II The Process

The process of review of the guidelines occurred in two official stages, a review initially requested by an act passed in 1999 and then by a legislative resolution passed in 2000. In the 1999 act, the Legislature directed the Department of Social Services ("DSS") and the Louisiana District Attorneys' Association ("LDAA") to conduct a comprehensive review and make recommendations in 2000.¹³ Their review included hearings held throughout the state for the presentation of testimony by users of the guidelines. Secondly, a resolution passed in 2000 requested continued study of the recommendations resulting from the review by DSS and LDAA by a more representative legislative task force that included legislators, judges, lawyers and a professor.¹⁴ The Task Force was directed to Page 715 submit recommendations in advance of the 2001 Regular Session of the Legislature.

The recommendations of the Task Force, partially modified in response to legislative concerns expressed at interim hearings prior to the 2001 legislative session,¹⁵ were incorporated into House Bill No. 1398. The bill represented a combination of some of the original recommendations by DSS and LDAA and of some modified and new recommendations made by the Task Force. The bill, rather heavily amended in the House of Representatives in both the Committee on Civil Law and Procedure and on the floor, passed approximately a week before sine die and became Act No. 1082 of 2001.¹⁶

The Act reflected decisions often made on the basis of political realities, and those decisions appear purely arbitrary. A perfect example were decisions affecting the guidelines' schedule. Fundamental economic assumptions were not revised with updated data, yet even the newest assumptions were admittedly based in part upon 1973 economic data and in part upon other such data compiled and synthesized in a federally funded study conducted between the years 1980-1986. There has never been a comprehensive study conducted to gather reliable specific data on the percentage of household income an intact Louisiana family spends on children for basic necessities across a broad range of income levels. The economic data was surely not perfect going into the process and was much less perfect coming out. Sausage? Well, at least Louisiana boudin.

Page 716

III Louisiana's Income Shares Model Of Guidelines

In 1989 when Louisiana adopted its child support guidelines in response to Congressional mandate,¹⁷ Louisiana chose the income shares model of guideline, one of four models implemented by the states in 1989.¹⁸ Thirty-three states have adopted the income shares model of guideline;¹⁹ and the remaining, either the percentage of obligor income model,²⁰ the Melson formula model,²¹ or the Massachusetts/District of Columbia hybrid of the percentage of obligor income model.²² None of the states have made major changes in their guidelines initially adopted, even after review of the guidelines mandated by the Family Support Act of 1988, for the purpose of considering current economic data and patterns of judicial deviation.²³

Page 717

The income shares model is based "on the concept that the child should receive the same proportion of parental income the child would have received if the parents lived together,"²⁴ and the Louisiana guidelines now incorporate this enunciated policy.²⁵ The laudable goal underlying income shares model is that the child should not suffer economically because his parents are not living together, either because of divorce or other marital disruption²⁶ or because the couple never formed a legal unit.²⁷ Thus, in Louisiana as in other states with an income shares model of guideline, the parents' incomes are combined to represent the total income of an intact family because "[i]n an intact household, the income of both parents is generally pooled and spent for the benefit of all household members, including any children."²⁸ The amount of total parental income is then "matched to economic estimates of how much an intact family with the same income and number of children would spend on child- rearing expenditures."²⁹ "A child's portion of these expenditures includes spending for goods used only by the child, such as clothing, and also a share of goods used in common by the family, such as housing, food, household furnishings, and recreation."³⁰ This Page 718 estimated figure forms the basic child support obligation in the schedule. Then, the basic child support obligation is prorated between the parents according to each parent's income, and the guidelines assume that the custodial or domiciliary parent will spend his or her prorated share directly on the child.

Unfortunately, the data upon which certain of these assumptions incorporated into the guidelines were made, such as the estimates of child-rearing expenditures, were already outdated in 1989 even though they represented the most current and reliable economic estimates at the time. In the case of the estimates of child-rearing expenditures of...