Minnesota family law lawyers often hear the question from parents who live apart from their child: “How much will I have to pay for child support?” The lawyer turns to the Minnesota Child Support Calculator online and inputs the relevant information, such as the number of minor joint children, each parent’s gross monthly income, the percentage of parenting time, and the cost of medical insurance.  The client (who is often the father, but not always) may be surprised to hear that his gross monthly income is used in the calculation rather than his take-home pay, and his monthly living expenses are not considered.  Even if he is not working full time, there is a presumption that he could earn full time wages, and that “potential income” is the amount that can be used for purposes of calculating the child support obligation that he must pay each month. 

Potential income can apply to a parent who has no legal authorization to work, but it cannot apply to a parent who receives financial assistance through the Minnesota Family Investment Program (MFIP).  If that’s the case, there can be no presumption that the parent receiving MFIP could earn potential income.   Although parents receiving MFIP are not held to a presumption that they could earn income, an undocumented immigrant is still deemed to be a potential earner of income, even without lawful authorization to work in the United States, and obligated to pay child support.  This was the issue before the Court of Appeals in the case of In Re the Marriage of Blanca Margarita Zaldivar, n/k/a Parada, v. Luis Roberto Zaldivar Rodriguez, 819 N.W. 2d 187 (Minn. Ct. App. 2012), a case that originated in Watonwan County, MN. 

Let’s say, for example, we have Jane, a U.S. Citizen.  She has a child, Xavier, with Juan, a Mexican citizen without legal immigration status, living in the U.S.  The parties break up and Juan moves out.  Jane, who is unemployed, applies for and is approved for MFIP and Medical Assistance (MA).  The county pursues a child support action against Juan because she has assigned her rights to the public authority as a recipient of MFIP.

Juan is working two jobs at a restaurant and cleaning office buildings at night.   Because of his work schedule, he only sees the child a few hours on the weekends and one evening per week, but has no overnights, so his parenting time is less than 10 percent.  While Juan was paying cash to Jane for voluntary child support and helping to buy diapers when he could, this was not sufficient for child support based on Minnesota guidelines, so the parties and the county appear in court before the child support magistrate.  Based on the child support calculator, if Juan is earning a gross monthly income of $2,200, and Jane’s potential income is set at zero, then his total child support obligation is $571 per month, including a contribution of $33 to the State of Minnesota for the Medical Assistance.  If Juan loses his job following an arrest and detention by Immigration and Customs Enforcement (ICE) and he cannot find new employment, he may seek to modify the child support order due to a significant change in circumstances, but the child support magistrate can deny his motion and use his most recent earnings as his potential income, based on Minn. Stat. Sec. 518A.32, subd. 1.   If he does not pay, he can be held in contempt and ordered to serve time in jail.   Although federal law prohibits an employer from hiring him without lawful authorization to work and the government can pursue sanctions and criminal prosecution against the employer, the employee is not going to face criminal charges for working, unless he knowingly uses forged, counterfeit, altered, or falsely-made documents to obtain employment, in violation of 8 U.S.C. § 1324c(a)(1)-(3).  The Court in Zaldivar still held that “as a practical matter, an unauthorized alien can work in the United States without risk of criminal punishment, even if such employment is inconsistent with an employer’s restrictions under federal immigration law”.  Id. at 193.

State courts recognize the reality of a broken federal immigration system, which means that many parents continue to work without lawful authorization, and often there is no other choice except to use an alias to get a job.  For some parents, it is a bigger moral crime to not have money to feed and clothe their child than any consequence the government may impose.  When setting child support, the Court’s primary concern is that the child’s basic needs are being met, and parents should not fear participating in child support proceedings due to a lack of lawful immigration status.  Family law attorneys should be careful not to intimidate opposing parties about providing information beyond the verification of their employer and wages for purposes of calculating child support.  Excessive probing and questions to the parent or employer about authorization to work could jeopardize a parent’s job, defeating the purpose of obtaining proof of income for the establishment of child support.

If you would like more information about a child support or other family law matter, please contact Wilson Law Group at 612-436-7100 for a consultation with one of our family law attorneys.