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What do I need to do, to have the court use potential income? How do I prove the opportunity to work?

Sacramento, CA |

My ex and I have a 9 month old baby. We have 50/50 custody child support order, with joint legal and she has physical custody with split child care cost. We settled out of court and did not once see a judge. She is in college and will be graduating in May. Baby has been going to the college's cc center. During her winter break, I worked, she cared for him. She complained about not being 50/50. On one of my days, she was too busy for care for him and refused her half of sitter. Once she graduates I want to go to court and request to use potential income. Mom lives with her parents and has no need to work, I support myself, baby and pay child support. I am scraping by. How much time will they give her to find work, how will her plans for grad school affect this?

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The legal burden is on you to present evidence that there are jobs available, in her geographical area, that she qualifies for. To show this, go to online job want ad sites like craigslist and others and printout those ads meeting the foregoing criteria. You attach those ads to a Request for Order form to modify child support. At the hearing on your Request For Order, if the judge believes you have provided sufficient evidence of available jobs then the court will order mom to "seek work." Usually the judge will order she apply to 5 or more jobs in her field per week and provide you or the court copies of such applications. If she reports to the court that she isn't being hired, then the judge has discretion to either tell her to "keep trying" or to tell her she isn't trying hard enough in which case the court may "impute" income (pretend for purposes of child support calculations that she has a job.) When judges impute income, I usually see them impute minimum wage. An experienced local family law attorney can help you do the above.

Thomas Neil is a Sacramento attorney, with 20 years experience, representing clients in Sacramento, the Bay Area, and surrounding counties. Or, if you cannot afford full representation then Mr. Neil can instead write you the forms and declaration you need, help you serve them, and tell you what to say and you can go to court by yourself. A well written declaration by an attorney, supported by proper evidence, will GREATLY increase your chances of success in court. Our office takes credit cards.

Thomas A Neil
3224 El Camino Avenue
Sacramento, CA 95821
(916) 446-4153


There is no current maximum (or minimum) timeframe provided for a parent to find work for purposes of imputing income in the determination of child support.

Family Code section 4058(b) states "the court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children."

As with most issues related to the custody/support of a minor child, this is an issue left to the discretion of the Judge. In doing so the Court considers a variety of factors, which is why you should consult with an experienced attorney to review the circumstances of your case.

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