In calculating child support the court can consider a parent’s earning capacity instead of their actual income, but only when doing so is in the best interests of the child. (Family Code 4058). The California Family Code does not define “earning capacity,” but it’s meaning has been established through case law. Courts have determined that earning capacity is comprised of both the ability to work and opportunity to work. If either ability to work or opportunity to work does not exist, the court will not replace the parent’s actual income with earning capacity.
Why does the court look to earning capacity in calculating child support when the parent has the ability and opportunity to work? The use of earning capacity as a replacement for a parent’s actual income lies in the strong public policy favoring the provision of adequate child support. After all, it would not be in the best interest of a child if their father who is a medical doctor quit his job to be a waiter.