California, United States of America
The following excerpt is from In re the Marriage of Debra D. Smith, 108 Cal.Rptr.2d 537 (Cal. App. 2001):
In any event, the one factor rule is inconsistent with our decision in Vargas insofar as it permits the trial court to consider matters that do not bear directly on an incarcerated parent's ability and opportunity to earn money in prison, or on the current availability of other assets he or she could utilize to pay child support.9 We repeat: "[B]oth elements of the earning capacity standard [ability and opportunity] must be satisfied regardless of the situation in which it is applied. If either element is not established, earning capacity cannot be substituted for actual income. Thus, if [a parent] does not have an opportunity to work, whether in prison or not, the earning capacity test is not satisfied and cannot be used to determine his child support payments." (State of Oregon v. Vargas, supra, 70 Cal.App.4th at p. 1127.) We meant what we said. The reason the parent is incarcerated is not relevant to this determination.
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexi.com.