Are Child Support Guidelines Unconstitutional?

On the surface this may seem like a ridiculous question. The simple answer that most people who have never been on the short end of the stick on this issue would give is, "No. Fathers should support their children no matter what!"

I have heard this answer time and time again. The problem with the response is, not only does it fail to answer the question but the person automatically assumes that we are asking whether or not fathers should be able to shirk their duty to support their children. This is not at all the nature of the question being asked here but whether the Child Support Guidelines, regardless of the perspective, the father's or the mother's, are unconstitutional.

The test for constitutionality has nothing to do with perspective or opinion but rather a set of standards as laid out by our forefathers in the US Constitution. The question that the Supreme Court must ask is, "Does this law violate the ideals set forth in the articles of and amendments to the United States Constitution?" One very famous and arguably most controversial case ever put to this test was Roe vs. Wade. The Roe majority rested its opinion squarely on the Constitution's due process clause. This is the principle that the government must respect all of a person's rights.

The point of this blog has nothing to do with abortion but rather the constitutionality of specific laws. The legal ramifications of monumental decisions by the Supreme Court affect the future decisions regarding constitutionality. The Supreme Court ruled that the due process clause protects a woman's right to choose. But what if the procedure itself was deemed illegal? Would she still have the right to choose or would it simple be an empty right?

Think of it this way, why doesn't the Constitution protect a person's right to die? The rights that we are awarded are life, liberty and the pursuit of happiness. If it's our life, don't we have the right to choose whether we continue that life or terminate it? The real answer is, yes! You actually do have the right to die. Thousands of people do it every day. What you don't have is the right to use an illegal procedure to end your life.

Those subjects will be debated until the end of time by people with strong opinions on both sides of the issues. Right or wrong the fact remains that due process is a principle the Supreme Court must uphold.

This brings me to the $64,000 question. Where is the non-custodial parent's right to due process? Time and time again in court rooms in every state of this great nation, judges deny the non-custodial parent's, (normally the father), right to life, liberty and the pursuit of happiness. The only time a person does not have that right according to the constitution is when he or she is convicted of a crime. Fathering children is not a crime and child support is not supposed to be punishment.

Living expenses are not considered when child support amounts are calculated. Often times this leaves fathers unable to support themselves in a normal and reasonable lifestyle. This argument has no bearing on the judges ruling. If a man's ability to feed and cloth himself and keep a roof over his head is taken from him then so is his right to life.

If a man cannot afford the child support payments, regardless of the reason, he can and most likely will be put in jail. Many times it is not by choice but by circumstances beyond his control that the payments cannot be made. This is not a consideration in the court's eyes and as such, the man is jailed and thereby stripped of his right to liberty.

If a man remarries and has children with his new wife, those children and their needs are not considered when the Child Support amount is calculated. This puts undue strain on his marriage and interferes with his right to the pursuit of happiness.

The Fourteenth Amendment guarantees equal protection of the laws. Equal protection implies fairness. Laws must be fair to all citizens. If a law is not fair to all citizens, that law by definition would be unconstitutional. Where is the fairness in the child support laws?

Should both parents contribute to the support of children? Yes. But the contribution should be fair. If the custodial parent makes as much or more than the non-custodial parent and they both have two children to raise, how is it fair that the non-custodial parent must surrender 1/3 of his income to the custodial parent? This is a typical scenario with middle income families.

How are the rights of the children of the second marriage protected? Why are they less important in the eyes of the law? Where is the equality?

The child support laws do not pass the test of due process. They lack the basic fundamentals of fairness in that they do not offer equal protection under the law. The payment obligation is unfairly handed down like a sentence to a criminal with dire consequences for noncompliance.

I can think of no other law that is less constitutional.