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Judges can consider earning capacity instead of income

Like other states, California family courts usually determine child support based on each parent's income. As a previous post on this blog discussed, determining each parent's income is not always simply a matter of comparing paychecks or tax returns.

In fact, disputes about child support often arise when a parent is self-employed, makes income from investments or other sources outside of employment and so forth.

Again like other states, California law allows family judges to take account of what the law calls a parent's earning capacity instead of that parent's actual income. In other words, the court can hear evidence on what a parent could be making instead of what a parent is actually making and issue a child support order accordingly.

Courts actually have considerable leeway when taking this step. However, the judge must consider the best interest of the children, especially their needs and welfare.

The court must also consider how much time a parent spends with the children. By way of example, it wouldn't be fair to consider a parent's earning capacity if the only reason that parent is not in a higher paying job is that he or she spends additional time caring for the kids.

On the other hand, a judge need not only consider earning capacity when it seems that a parent is deliberately trying to avoid work. Any parent who seems able to work and has a reasonable opportunity to do so can have his or her earning capacity considered, even if the parent had seemingly legitimate reasons to pass up such opportunities.

Whether a judge should consider a parent's earning capacity depends heavily on a family's individual circumstances. San Jose residents with detailed questions about this option should consider speaking to a family law attorney.

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