From: noraa@cbnewsk.cb.att.com (aaron.l.hoffmeyer)
Newsgroups: alt.child-support,misc.legal,soc.men,misc.kids,alt.dads-rights
Subject: Changing the World Takes Time (Was: Re: What a Problem!!!)
Date: 15 Oct 92 17:16:29 GMT
Organization: AT&T Bell Laboratories

The following is posted on behalf of Ross Williams,
williams@caesar.safb.af.mil, who is on one of those finger nodes where
he can read USENET but can't post....

I mentioned in a reply to Mark Eckenwiler that I personally believed that
many aspects of divorce law violate constitutional boundaries.  The topic
under discussion was equal protection in re extending child support
obligations to cover college tuition beyond a child's eighteenth b'day.
Fathers of intact households are not required to abide by this law.

As I understand Con Law (in re Equal Protection) the law cannot differentiate
between groups of citizens unless a "compelling State interest" requires
such differentiation.  This is why (e.g.) Jim Crow laws are unconstitutional
while Affirmative Action laws are not (even though both differentiate between
race): the state has a "compelling" interest to remove the effects of 
segregation.

So, okay.  Please, some legal beagle explain (in uncondescending language --
Mark Eck) why a state can claim what it does in the following examples of 
real (though prob. not technically stated) divorce law:

Certain states can make divorced fathers pay their children's college costs
while not requiring fathers of intact families do so.  This is either
(apparently) law -- though I have not seen such laws, my familiarity with
them being strictly hearsay ergo inadmissable -- or by judicial decree.
Florida appeals court ruled (3 yr ago?) that a circuit court was within 
its authority to make a divorced dentist pay for his 19 y.o. child's
college education.

Nearly all states routinely prohibit divorced fathers from having any
authority whatsoever on the disbursement of funds ostensibly used for
child support; fathers of intact families are not so encumbered.

Nearly all states routinely charge fathers (esp middle-class, IMO) child
support based NOT upon the necessary expenses of raising a child, BUT on
some calculated "average" for parents of that income bracket.  This
method NECESSARILY includes funds which in intact families are spent
discretionally, and cannot be argued as necessary to a "compelling State 
interest".  And then, as if it needs to be said, the state disallows the 
provider of these discretionary funds any authority over their use.  The 
state has no requirements that parents of intact families provide 
discretionary funds to the upbringing of their children.

[Here in Illinois there was a divorce which got to the Ill S.C. --
Boris v Blaisdel (?) 1987 (?) {the `Boris v' part is right} -- in which
the father, Blaisdel, was required to pay thousands more in support
after he got a huge raise.  He argued that the state's only interest was 
that his children were clothed, fed and housed "adequately", and that any
discretionary funds over and above the State's interest were unconst. due
to equal protection; the state cannot require parents to provide the $$
equivalent of Nintendo and Nike pump-em-ups just because the parents can
afford them.  He argued that because the support guidelines do not
address the necessary expenses of the child, that they are unconst; that
because the legislature made the guideline, that it violated state and
federal const requirements of separation of powers; and a few other things.
Most of his argument was denied, I remember reading, but I believe the
contention that divorced fathers cannot be held to a separate standard 
than other fathers was upheld.]

Federal law requires the state to be the enforcer of child support orders
while not collaterally requiring the state to enforce visitation orders.

A finding of failure to pay child support is (42 USC $651-668) a crime
against the state and the obligee (ex-wife); a finding of failure to
allow visitation is routinely a matter between the parties.

[A side note for non-lawyers out there: true, all of these laws have no
built-in presumption of discrimination, i.e., they do not say "divorced
fathers" or "divorced mothers".  This only means that they are not
discriminatory "on their face".  They can still be discriminatory "in
their effect".  Laws which are administered poorly are ruled "discr. in
effect" daily if they have barely one-third of a minority involved.  Our
divorce/custody/support/visitation rulings are much more lopsided than 
that.  Over 90% of divorces end up with the judge giving sole/primary
custody to mom: discr in effect.  Enforcing support orders at state 
expense (I realize it's rarely done, tho) gives women a far greater chance
of having their rights enforced: discr in effect.  The Parent Locator
Service, used to find obligors of support ("deadbeat" dads) ONLY, and not
also used to find visitationally interfering mothers is: discr in effect.]

Now someone please explain: 1) what is the state interest in any/all of 
these; 2) by what rationale can anyone argue that a differentiation between
divorced/non-divorced fathers is justifiable; 3) how does this 
differentiation fit the state's interest?  Please keep it not-too
technical.
* * * * * * * * * *
The next section is dedicated to due process considerations.  And again,
my understanding of Con Law in re "due process" is: the state can't do
anything to you unless they are allowed by law, and YOU have the right
to challenge the law.

Florida requires that "all new and modified" child support orders be
subject to garnishment, even absent finding of default.  Does this not
1) assign a criminal punishment without criminal procedure (accusation,
discovery, evidence, testimony, rebuttal, conviction, JURY)? 2) let's
not forget jury trials here, folks; Am. VII "In all matters at common 
law in which the value in controversy shall exceed $20, the right to
trial by jury shall be maintained." 

I can't think of a single divorce with a settlement less than twenty
smackers.  Where're the juries?  Cumbersome to the process? never stopped
us before.  Not "at common law"?  Then neither is any other aspect of 
our legal system.  Divorce is MORE "at common law" than, say, criminal
law; Common Law is derived of principles of "King's Courts" of England,
where the sovereign of an area sat in judgment of anything not covered
by specific laws -- like crimes.  Otherwise known, here, as "matters in
'equity'", they are the specific areas which our Framers decided the
citizens needed the most protection against judicial tyranny.  How true.

Back to due process: many states routinely grant Temporary Injunctions 
(TI's) with only the word of the claimant, removing rights of property 
and communion (access to children) without notification or any other
Miranda right.  Respondants in divorce litigation are not entitled to
even the basic rights accorded to accused criminals? sounds like what
I've been saying for years: divorced fathers are treated worse than
common criminals.

Please explain: 1) how is due process being served; and 2) when the 
process is different than criminal, explain how divorce litigants'
basic rights are being considered/honored.  Again, make it not-too
technical.
* * * * * * * * * * *
This section is for taxation without representation.  I realize that
Tw/oR is strictly a DeclInd phrase, but it is still considered valid
in Con Law, and several type of taxes/fees have been declared unconst, 
although I cannot think of a specific example.

Simply put, anything is a tax which is 1) money given to the government
which is 2) used by the goverment in some program or policy of that 
government.  Your yearly auto registration -- which they call a 'fee' --
is technically a tax.  The dollar many states require to have your
child's birth certificate copied/notarized/sent to parents is also a
tax.

I remember in my Con Hist class (several yrs ago) that a tax cannot be
a "selective, involuntary" tax -- an extension of equal protection, IMO,
but nonetheless, one of the reasons we started our revolution.  We have
taxes all over the place.  We have involuntary taxes (taxes which, for
all practical purposes, you cannot avoid) like income/FICA taxes; we
have selective taxes (those which only apply to certain people because
of actions they voluntarily undertake) like cigarette/gasoline taxes.

The problem comes in when you tax (or fee) someone because of special
circumstances and not allow him to avoid it.  Suppose (e.g.) that the
government of North Carolina required all persons making more than $25k
to buy (and smoke?) cigarettes.  To profit the citizens of the state, 
naturally.  NC would be selecting certain people based upon income and 
requiring them to participate in an activity which would require them 
to pay cigarette tax.  There is no practical way for such a person to
remove himself from the select crowd (or HERself, yes I know.  Stop
sniffling) without requiring the person to abdicate other rights (liberty
-- choice of living location, employment type); a Constitutional no-no.

Now.  As all states are required to do, and most probably comply, all
child support payments are sent to the Clerk of the Court.  The Clerk is
allowed to charge a fee, based upon the amount collected, to the obligor
(divorced dad) for paying support through the state.  Does the father have
an option?  No; the tax is therefore involuntary.  Does everyone have to 
pay this tax based upon the same criteria, i.e., the amount of money used
to provide for their children?  No; the tax is therefore selective.  
BZZZZT!  A Constitutional no-no.

Are you going to argue that the father had a choice in having children/
getting divorced?  I'll go along with the first, not the second.  Divorce
is now universally "no-fault" -- even in states which do not specifically
have the law (define for me "consentual contract" and give one example...)
-- and so it is not the voluntary commission of anti-marital acts which
cause divorce, and it is not necessary that both parties agree to a divorce
before a divorce can occur.  On top of which, women start two of three
divorces.  It can be argued that to many (if not most) men, the payment of
child support is nonvoluntary.  Any taxes thereon would also be involuntary.

And to alleviate any nitpicking: other fathers do not PAY child support,
they support their children.  The difference is in cause and legal intent.

Please explain why this situation is 1) NOT a violation of Tw/oR or equal
protection (either one will do) and 2) different in a readily discernable
way from the hypothetical NC law.
* * * * * * * * * * * * *
I thank all youse mouthpieces out there who are taking the time to
answer this.  And this will probably sound like my built-in rationalization,
and you'll probably be right, BUT, anyone who agrees with/justifies any of
the above laws or legal requirements IS WRONG.  Morally wrong.

Why do I say this?  For the same reason the Dred Scott said that property
rights to slaves do not extend to people in non-slave states in 18(32?),
but was vindicated (partially) in 1867 by the Const elimination of slavery
and on-paper extension of rights to former slaves, and partially in 1954
with Brown v Board, and partially with the Civil Rights Act of 1964, etc.

Things like rights take a long time between when they are missed and when
the system acknowledges that they even exist and when society at large
actually allows them to be enjoyed in peace.  Unfortunately.  So while I
have the comfort of knowing that I'm right, it won't do me much good in
the real world until the rest of you dolts wake up to that fact.

Did I just say "dolts"?  'Pologies; I'm dealing with a bank in between
paragraphs.  But still, it's the way of the world.  Hopefully it won't
take five generations before we can acknowledge our collective stupidity
in this situation.

-rw
williams@caesar.safb.af.mil
Newsgroups: alt.child-support