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22 Oct 2012 | 4:28 pm

Best Interest of the Child in Child Support

Best Interests of the Child: The New Child Support Guidelines Standard

By Wendy A. Jerkins and Vicky O. Kimbrell

Discretion, guided by the best interest of the child standard, permeates the new child support guidelines that become effective in Georgia on Jan. 1, 2007. Thus, the complicated mathematical worksheets and electronic calculators being developed and distributed to deter-mine child support will result in a presumptive amount of support. That amount is then subject to increase according to the best interest of the child and the circumstances of the parties. [1]

Routinely, children are the economic losers after divorce. The stated underlying public policy of the new statute is to assure that, to the extent possible; children are financially protected after the parents’ divorce. [2]


As Justice Leah Ward Sears commented, after divorce the children often bear the brunt of the economic insecurity that threatens their well being. “Children in single-parent families, children born to unmarried mothers, and children in step-families or cohabiting relationships face higher risks of poor outcomes.” [3]

In all, three new standards emerge to warrant an award of child support different than the amount determined under the mathematical worksheets to be used under the guidelines. The three standards set out in the statute are:

  1. Best Interest of the Child [4]
  2. Unjust or Inappropriate [5]
  3. Minimally Adequate [6]

Standards Controlling the Child Support Guidelines
Two of the standards set forth above are absent in the previous guidelines, namely: “best interest of the child” and “minimally adequate.” The new guidelines repeat the “best interest of the child” standard throughout the statute. [7]

The old statute appeals directly to equitable principles only once when it refers to the guidelines resulting in an “unjust or inappropriate” [8] award of child support. The new statute specifically sets out the fact-finder’s responsibility to go outside of the guide-lines where the “[a]pplication of the Presumptive Amount of Child Support would be unjust or inappropriate.” [9]

Any deviations must be expressly set forth by the fact finder in written findings of facts. [10]

Finally, the new guidelines establish a minimum floor for child support. “No Deviation in the Presumptive Amount of Child Support shall be made which seriously impairs the ability of the Custodial Parent to maintain minimally adequate housing, food, and clothing for the Child being supported by the order and to pro-vide other basic necessities, as determined by the Court of the jury.” [11]

Low Income Parents


For the non-custodial parent who seeks a “low income” deviation, the new statute requires the fact-finder to “determine if the Non-custodial Parent will be financially able to pay child support and maintain at least a minimum standard of living. “However, these considerations do not over-ride the fact finder’s responsibility to assure the “minimally adequate” floor that may require an upward deviation or ignoring the parent’s request for a “low income “deviation. [12]

Similarly, the fact-finder must examine the employment (or underemployment) status of the custodial and non-custodial parent. The statute requires the fact-finder to ascertain the reasons and the reasonableness of the parent’s occupation and the benefit of those choices to the child. [13]

The inquiry regarding the parent’s current occupational status includes the employment, the educational, and the training history of the parent; the parent’s assets (including personal and real property); the parent’s health; and the parent’s role as caretaker. [14]

Domestic Violence as a Factor in Determining Child Support Award

Concerns regarding domestic violence must necessarily be a part of the calculations when determining child support and custody. [15]

Nearly one third of women report being abused by a husband or boyfriend during their lives. [16]

The family violence act specifically authorizes a trial court to award temporary child support “as required by law.” [17]

Issues regarding child support deviations based on domestic violence–although not specifically addressed in the new child support statute– fall within one of the miscellaneous catchall criteria for deviations, to wit: “Extraordinary expenses,” [18] “Parenting Time,” [19]  and “Nonspecific Deviations.” [20]

The court must consider family violence in deter-mining child custody. [21]

Where the court has made a finding of family violence, the statute requires that the court “shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence” and “shall consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person.” [22]

As the non-custodial parent, the perpetrator of violence maybe subject to more restrictions on visitation. [23]

Similarly, the batterer may bear the brunt of the visitation costs and additional expenses because of the abuse. The custodial parent may require more financial support from the non-custodial parent to cope with the consequences of the abuse.[24]

Each lawyer will be required to understand and be able to work through the mechanical mathematical formulas by using either the paper worksheets or the electronic calculators. More importantly, however, effective advocacy under the new guidelines will require a good grasp of the law, persuasive presentation of the evidence, and a clear understanding of the new equitable standards that guide this law.

Endnotes

1. O.C.G.A. § 19-6-15(c)(1) (“The rebuttable Presumptive Amount of Child Support provided by this Code section may be increased according to the best interest of the Child for whom support is being considered. . . .”)

2. O.C.G.A§ 19-6-15(c)(1) (The rebuttable Presumptive Amount of Child Support provided by this Code Section may be increased. . . to achieve the state policy of affording to children of unmarried parents, to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of Parents with similar financial means.)

3. Leah Ward Sears, a Case for Strengthening Marriage, The Washington Post, October 30, 2007, at A17.

4. O.C.G.A. § 19-6-15(c)(1) (Applicability and required findings); O.C.G.A. § 19-6-15(c)(2)(E)(iii) Applicability and required findings; O.C.G.A. § 19-6-15(i)(1)(A) (Grounds for Deviation - General Principles); O.C.G.A. § 19-6-15(i)(1)(B)(iii)(II) (Grounds for Deviation - General Principles); O.C.G.A. § 19-6-15(i)(2)(A) (Specific Deviations - High Income); O.C.G.A. § 19-6-15(i)(2)(H)(Specific Deviations - Mortgage); O.C.G.A. § 19-6-15(f)(5)(C) (Adjustments to Gross Income - Theoretical Child Support Orders); O.C.G.A. § 19-6-15(i)(3)(Nonspecific Deviations).

5. O.C.G.A. § 19-6-15(c)(2)(E)(iii) (Applicability and Required Findings); O.C.G.A. § 19-6-15(i)(1)(B)(iii)(I) (Grounds for Deviation - General Principles).

6. O.C.G.A. § 19-6-15(i)(1)(C) (Deviation Floor); O.C.G.A. §19-6-15(i)(2)(B)(I) (Specific Deviations - Low Income).

7. O.C.G.A. § 19-6-15(c)(1) (Applicability and Required Findings); O.C.G.A. § 19-6-15(c)(2)(E)(iii) (Applicability and Required Findings); O.C.G.A. § 19-6-15(i)(1)(A)(Grounds for Deviation - General Principles); O.C.G.A. §19-6-15(i)(1)(B)(iii)(II) (Grounds for Deviation - General Principles); O.C.G.A. § 19-6-15(i)(2)(A) (Specific Deviations - High Income); O.C.G.A. § 19-6-15(f)(5)(C)(Adjustments to Gross Income - Theoretical Child Support Orders).

8. “A written finding or specific finding on the record for the award of child support that the application of the guide-lines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case.”O.C.G.A. § 19-6-15(b) (2005).

9. O.C.G.A. § 19-6-15(i)(1)(B)(iii)(I) (Grounds for Deviation -General Principles). See O.C.G.A. § 19-6-15(c)(2)(E)(iii)(Applicability and Required Findings) (requiring the fact-finder to make specific findings detailing how the child sup-port guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support).

10. O.C.G.A. § 19-6-15(c)(2)(E) (Applicability and required findings).

11. O.C.G.A. § 19-6-15(i)(1)(C) (Deviation Floor). See also O.C.G.A. § 19-6-15(i)(2)(B)(i) (Specific Deviations – Low Income) (“Under no circumstances shall the amount of child support awarded to the Custodial Parent impair the ability of the Custodial Parent to maintain minimally adequate housing, food, and clothing and provide for other basic necessities for the child being supported by the court order ”).

12. O.C.G.A. § 19-6-15(i)(2)(B)(i) (Specific Deviations - Low Income).

13. O.C.G.A. § 19-6-15(f)(4)(D)(i-vi) (Gross Income- Reliable Evidence of Income - Willful or Voluntary Unemployment or Underemployment). This inquiry may benefit the parent whose income and earning capacity may be sup-pressed as a direct result of the intentional acts of the other parent. For example, the perpetrator of violence refusing to allow the victim of violence to work or to attend school. See Georgia Superior Court, Domestic Violence Bench book: A Guide to Civil and Criminal Proceedings, 2nd Edition (2006) at C-1 (identifying domes-tic violence in domestic relations cases).

14. O.C.G.A. § 19-6-15(f)(4)(D) (Gross Income- Reliable Evidence of Income - Willful or Voluntary Unemployment or Underemployment). See also O.C.G.A. § 19-6-15(j)(Involuntary Loss of Income) (considering deviations based upon the involuntary loss of wages).

15. See also O.C.G.A. § 19-13-4(a)(6) (discussing the award of child support in protective orders).

16. Nearly one-third of American women (31 percent) report being physically or sexually abused by a husband or boyfriend at some point in their lives. The Commonwealth Fund, Health Concerns Across a Woman’s Lifespan: 1998Survey of Women’s Health, May 1999.

17. O.C.G.A. § 19-13-4(a)(6); Baca v. Baca, 256 Ga. App 514.519 (2002) (“O.C.G.A. § 19-13-4(a)(6) specifically allows the court to award support “as required by law.”); Davis-Redding v. Redding, 246 Ga. App. 792, 794 (2000)( “In order to achieve this purpose the act gives the trial court the authority to order temporary relief as it deems necessary to protect a person from violence.”)

18. O.C.G.A. § 19-6-15(i)(2)(J) (Extraordinary Expenses).

19. O.C.G.A. § 19-6-15(i)(2)(K) (Parenting Time).

20. O.C.G.A. § 19-6-15(i)(3) (Nonspecific Deviations).

21. O.C.G.A. § 19-9-1(a)(2) and O.C.G.A. § 19-9-3(a)(3).O.C.G.A. § 19-9-7 (Visitation).

22. O.C.G.A. § 19-9-1(a)(2)(A) and (B).

23. O.C.G.A. § 19-9-7.

24. Lundy Bancroft and Jay Silvermen, The Batterer as Parent, Assessing the Impact of Domestic Violence (2002)

 


 
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