In California, especially in the Bay Area and Central Valley, people hail from different lands and bear different immigration statuses. Considering we are a nation of immigrants, it is not uncommon to stumble upon an immigration issue in a family law case.
Recently, the courts have addressed how one parent's immigration status will effect the child support calculation. Generally speaking, child support is calculated based on the parties' incomes and the time the child spends with each party. Where one or both parents are not authorized to work in the United States, various issues arise. For example, to determine child support, the court must consider the earning capacity of the immigrant parent. This is an especially difficult task where the immigrant party is not earning enough money to provide for care of the minor child.
In some cases, the higher earning parent who has primary physical custody of the minor child or children, will still owe child support moneys to the underemployed parent. Typically, in cases involving underemployment of one party, the court will impute income on to the underemployed party. In other words, the State of California expects that both parents will equally and fully contribute to the maintenance and care of their children. Where one party is not working to his or her full earning capacity, the court will assign a certain amount of wages to the underemployed party based upon what the court believes the underemployed party could or should be earning. Child support is calculated based upon the underemployed party's imputed income, not based upon his/her actual income. In order to impute income the court has to consider the parties' earning capacity. Earning capacity is composed of " 'the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications,' " and " 'an opportunity to work which means an employer who is willing to hire.' In re Marriage of Parker & Carpenter, A139315, 2014 WL 3870292 (Cal. Ct. App. Aug. 7, 2014)
In cases, where there is an ongoing issue with the immigration status, the underemployed party may argue that income cannot be imputed because there is not an opportunity to work. The Appellate court in California recently addressed a Marin County case in which one party argued that income should not be imputed because of his immigration status . The court disagreed, stating, "Thus, the evidence demonstrates that Parker's immigration status alone does not deprive him of the opportunity to work.2" In re Marriage of Parker & Carpenter, A139315, 2014 WL 3870292 (Cal. Ct. App. Aug. 7, 2014)
In light of Parker, the immigration status of a parent is not dispositive of the party's ability to work. The court considers the reality and understands that often immigrants without work authorization can still find employment in California.
When dealing with an underemployed parent, regardless of immigration status, it is important to seek legal guidance to get the best possible outcome. It is vital to speak to an attorney who can assist you in determining the correct amount of child support your child deserves. Contact an attorney in Pleasanton, CA or Oakdale, CA to understand your rights in your family law case.