The family law court can look not only to a parent’s actual income when calculating child support, but also to that parent’s “earning capacity.” Family Code Section 4058(b) allows courts to consider a parent’s earning capacity when calculating child support if doing so is consistent with the best interests of the child.
Case law has limited an imputation of a parent’s earning capacity in lieu of actual income to only those cases where the parent has both the ability and opportunity to work.
- Ability to work: the court will consider the parent’s age, skills, education, occupation, and experience.
- Opportunity to work: the party seeking imputation of earning capacity in lieu of actual income must show that the parent has the opportunity to work through some tangible evidentiary foundation. (For example, job postings). Upon such a showing the court may determine that the parent has a reasonable likelihood with reasonable effort to apply their skills, education and training to produce income through employment or self-employment.
When calculating earning capacity the court will normally base the value upon an objectively reasonable work regimen rather than an extraordinary or onerous work schedule. However, when the parent’s profession normally involves overtime work or long hours, such as in the case of doctors, the court may base earning capacity upon overtime work.