In California, especially in the bay area and in 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 family law case. One issue that has been recently been addressed is how the parents immigration status effects the child support calculation. Generally speaking, child support is calculated based on the parties incomes and the time the child spends with each party.
If one or both of the parents are not authorized to work in the United States, this creates a number of issues. The one of the issues is earning capacity of the immigrant parent. This is an especially difficult where the immigrant party is not earning enough money to provide for care of the minor child. Sometimes the higher earning parent will owe the underemployed parent child support despite having primary physical custody of the minor child or children.
Typically, in cases on involving underemployment of one party, the court will impute income on to the underemployed party. 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 heard a case out of Marin County where one party argued that income should not be imputed because of his immigration status . Nevertheless, the court stated, "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)
Therefore, 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 first 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 child support, your child deserves. It is imperative to speak to an attorney out of Pleasanton, CA or Oakdale, CA to understand your rights in your family law case.