The sad truth is that the Legislative intent that underlies today’s child support laws is often manipulated as a practical matter by parents who wish to lower their monthly payments. This unintended and unfortunate incentive muddles the waters when attempting to work out an arrangement with a co-parent that is in the best interest of the child.

According to California Family Code 4053, the amount of child support that each parent pays is determined in part by each parent’s ability to pay, amount of income, and duration of time spent with their child. These factors are clearly intended to promote fairness, reduce confrontation, and ensure that the child’s best interests are considered. However, everything doesn’t always go according to plan and this is no exception. 

In many instances, parents who are either financially strapped or who are otherwise looking to lower or otherwise completely eliminate their child support payments may quit their job and actively spend less time with their child for purely financial reasons. This unfortunate result is typically not in the best interest of the child and certainly not consistent with the legislative intent behind the statute. 

However, there is one magical word that has allowed the Courts to remedy this unintended consequence of the statutes relating to child custody. This wonderful word is discretion. Judges have very wide discretion is interpreting the applicable family law code section so as to create a child support order that is truly in the best interest of the child. Of course, this is not a free- for- all. The child support order must be supported by evidence, facts, and common sense.

The specific manner by which judges have handled a scenario such as this is by considering earning capacity instead of the actual income that a parent has earned. The fancy term for this potential ability to generate income is imputed income



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The general elements that factor into a Court’s finding of imputed income are as follows:

  1. The parent is unemployed or underemployed;
  2. The parent’s earning capacity (i.e. education, work experience, resume, etc.) exceeds their present earnings or lack thereof; and
  3. There are sufficient related earning opportunities and the parent actually possess the ability to engage in such work.

As a general matter, the definition of “income” here is not solely limited to salary but also extends to income generated from whatever assets a parent may have ownership of. 

These elements are left intentionally vague so as to ensure that judges are free to use their discretion so as to create a child support arrangement that is consistent with the policy underlying the written words. For instance, what constitutes “underemployed”?  How is “earning capacity” actually determined? What in the world classifies someone as being unable to work, or lacking in opportunities? 



How far a judge’s discretion in defining “ imputed income” actually stretches is not clearly defined. It is a fine line that any parent should not attempt to fully understand without the help of a well versed family law attorney.   Legal assistance will also be key in determining what key legal arguments and evidence should be presented to the judge to aid in his or her assessment of imputed income.

Contacting Oceanside divorce attorneys, Fischer & Van Thiel is a necessary first step to understanding this confusing and seemingly ambiguous area of family law.  As is quite evident, assessing and calculating imputed income when faced with a parent that you truly believe is unemployed or underemployed, and whom you feel could and should be contributing more in child support is not a black and white issue. Seeking legal guidance can help ease your mind help you approach this very confusing issue with confidence that your child will receive the support that he or she is entitled. 



The economy is clearly not what it once was. The unemployment rate is lower than ever before and being qualified for a particular job or career does not always equate to “employment”. For example, your co-parent may be a talented and educated financial analyst. However, the associated experience and education may be worthless for the purposes of imputed income if there are little or no employment opportunities available in the financial sector of the current job market. 

Similarly, assume that a co-parent is a successful general contractor who suffered a back injury and claims to no longer be able to work in the same capacity due to physical, injury-related limitations. In a scenario such as this, assessing whether or not this individual is actually physically capable of working as a contractor and subsequently earning the income associated with his related education and experience becomes far more complicated.

Alternatively, there may have been an unexpected and involuntary change in one’s financial situation that falls short of unemployment and is unrelated to physical limitations, but which nevertheless impedes one’s ability to generate income consistent with their “earning capacity”. For instance, needing to cut one’s hours to care for a loved one.

The bottom line is that there are a multitude of contingencies that can come to play when imputing income for child support purposes. Some of the factors that a judge will consider when assessing imputed income include:

  1. Average earnings over the past 5 years
  2. Employment history
  3. Employment opportunities on the community level
  4. Education and training
  5. Circumstances surrounding serration from the prior work relationship.

It’s important to always keep in mind that while the law provides certain guidelines to be followed by judges in calculating imputed income, the ultimate decision ultimately lies with the judge who has wide discretion to decide what child support arrangement is in the best interest of the child.

The seemingly vague nature of the laws surrounding imputed income for child support purposes, not to mention the practical realities that are inherent in today’s society further solidify the importance of contacting a family law attorney to guide you through the process of ensuring that your child receives adequate support from both parents.