BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1292 (Walters)
As Introduced
Hearing Date: May 4, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Child Support: Vocational Examination
DESCRIPTION
This bill, sponsored by the Conference of California Bar
Associations, would authorize a court, in a proceeding in which
child support is an issue, to order a party to submit to an
examination by a vocational training counselor.
BACKGROUND
In the context of spousal or child support orders, earning
capacity refers to what a parent could potentially earn, rather
than what he or she actually is earning. (See In re Marriage of
Simpson (1992) 4 Cal.4th 225, 234.) Under the statewide uniform
guideline, the court may, in its discretion, consider the
earning capacity of a parent in lieu of that parent's income, if
consistent with the best interests of the child. (Fam. Code
Sec. 4058.) Pursuant to case law, earning capacity is composed
of: (1) the ability to work, including such factors as age,
occupation, skills, education, health, background, work
experience, and qualifications; (2) the willingness to work
exemplified through good faith efforts, due diligence, and
meaningful attempts to secure employment; and (3) an opportunity
to work which means an employer who is willing to hire. (In re
Marriage of Regnery, 214 Cal.App.3d 1367, 1372.)
Existing law authorizes the court, in a dissolution proceeding
raising spousal support issues, to order a party to undergo a
vocational examination to determine that party's earning
capacity. (Fam. Code Sec. 4320.) This bill would similarly
(more)
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authorize the court to order a party to undergo a vocational
examination for the purposes of determining a party's earning
capacity in child custody proceedings.
CHANGES TO EXISTING LAW
Existing law provides that in a dissolution or legal separation
proceeding raising spousal support issues, the court may order
either party to submit to an examination by a vocational
training counselor, as specified. Existing law provides that
the focus of this examination is to obtain an assessment of a
spouse's ability to obtain employment that would allow the party
to maintain herself or himself at the marital standard of
living. (Fam. Code Sec. 4320.)
Existing law provides that, for the purposes of determining
child support obligations, 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. (Fam. Code Sec. 4058.)
This bill would authorize a court, in a proceeding in which
child support is an issue, to order a party to submit to an
examination by a vocational training counselor.
This bill would provide that the focus of this examination is to
obtain an assessment of a spouse's ability to obtain employment
that would allow the party to meet his or her duty to provide
support of the minor child.
This bill would provide that the order for the vocational
examination may be made on the motion of either party, the
court's own motion, or stipulation of the parties. The order
shall be made for good cause after notice is provided to all
parties.
This bill would provide that a party who does not comply with an
order for a vocational examination may be subject to sanctions.
This bill would provide that the court may order either party to
pay the necessary expenses and costs of the vocational
evaluation taking into account the respective incomes and needs
of the parties, and any factors affecting the parties'
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respective abilities to pay.
This bill would define vocational training counselor as an
individual with sufficient knowledge, skill, experience,
training, or education in interviewing, administering, and
interpreting tests for analysis of marketable skills,
formulating career goals, planning courses of training and
study, and assessing the job market to qualify as an expert in
vocational training under Section 720 of the Evidence Code.
This bill would specify the minimum professional requirements
for a vocational training counselor.
COMMENT
1.Stated need for the bill
The author states:
Although existing statutory and case law permits a court to
impute income for purposes of establishing appropriate levels
of child and spousal support, it only permits the court to
order a vocational training examination in spousal support
cases. This distinction denies the court the same express
ability to obtain important quantifiable evidence of a party's
earning capacity in child support cases that is readily
available in spousal support cases. The effect of this
omission is that while courts have the authority to base child
support orders on a parent's earning capacity, they do not
have specific authority to obtain the evidence necessary to
accurately assess that capacity. This can result in
situations where a court may issue an earning capacity order
for child support that does not accurately reflect the true
earning capacity of the supporting parent because the court
was forced to rely on each party's testimony regarding a
parent's "earning capacity," rather than the objective
assessment of an independent expert.
2. Bill would authorize vocational examinations in child
support cases
In In re Marriage Bardzik (2008) 165 Cal.App.4th 1291, the
appellate court considered the case where, in a child support
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modification proceeding, the father asked that income be imputed
to the mother, who had retired from her job as a deputy sheriff
at the age of 42. The father requested that income be imputed
based on the mother's final salary before retirement, but
presented no evidence of her vocational abilities or of any
opportunities she may have had to earn additional income.
Instead, the father simply asserted that the mother's income
should be imputed because she had not provided any reason for
her early retirement other than the desire to be a
"stay-at-home" mom. (Id. at 1297.) The court noted that the
father did not present the mother's resume, want ads for persons
with her credential, opinion testimony from a professional job
counselor, nor was there any vocational examination. (Id. at
1309.) Accordingly, the appellate court found that the father
had failed to carry his burden of proof to establish the
mother's earning capacity under Family Code Section 4058(b).
As previously discussed, there is no express statutory authority
for the court to order a vocational examination when only child
support is at issue, although the court does have general
authority to impute income, consistent with the child's best
interests. This bill would specifically provide that the court
may order examinations by a vocational training counselor in
proceedings where child support is an issue.
3. Concerns regarding the use of vocational examinations in
child support cases
Proponents of this bill assert that the vocational examination
is simply a way to provide courts with evidence upon which a
reasonable, substantiated imputation of income may be based,
including the job availability of where a party lives, rather
than imputing income solely upon the party's background,
training, and other factors. However, a vocational examination
does not take into account situations where a parent may have
left a job or taken a lesser paying job in order to spend more
time with his or her/child(ren) or family. In Bardzik, the
mother retired after 20 years as a deputy sheriff because her
family was suffering from the extreme stress of her working in
the maximum security part of the Orange County Jail. (Bardzik,
supra, at 1299.) If she had undergone a vocational examination,
the examination would not have taken into account the reasons
for her retirement. Instead, it would have focused solely on
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her earning capacity, and potentially could have led the court
to impute a higher income. In this manner, vocational
examinations do not favor parents who have made the decision not
to maximize their earning capacity so as to dedicate more time
with their children.
Further, vocational examinations in the spousal support context
do not necessarily serve the same purpose as they would in child
support cases. In spousal support cases, the court may order
the supporting party to pay, in addition to spousal support, the
necessary expenses and costs of counseling, retraining, or
education.
With respect to this bill, the sponsor states:
[S]ince the examination by a Vocational Training Counselor is
typically paid for by the party seeking a support award or
modification based on imputed income, the order to undergo
examination can amount to free vocational counseling and job
search assistance to the other party. This benefits both that
party and the child[ren] in whose interests the support is
ordered.
However, in the child support context a vocational examination
would not be necessarily accompanied with free counseling or job
search assistance for the party ordered to submit to
examination. The purpose of the vocational examination in this
case would not be to assist the parent in obtaining employment
so as to lower or eliminate the spousal support obligations of
the supporting spouse. Rather, the examination would be used to
determine earning capacity for the purposes of imputing income
to determine the amount of child support owed. Once the
vocational examination has been completed and the child support
amounts adjusted, the other parent would not be required to pay
for additional retraining or education. Moreover, as previously
discussed, the parent ordered to undergo examination may not
even be in need of counseling or job search assistance.
In addition, this bill would provide that the court can order
either party to pay the necessary expenses and costs of the
vocational examination, taking into account: (1) the respective
incomes and needs of the parties; and (2) any factors affecting
the parties' respective ability to pay. Thus, there could be
scenarios where a party would be ordered to pay for the costs of
his or her own vocational examination, even if it was requested
by the other party to establish earning capacity for the
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purposes of imputing income. If a party does not have to pay
for the costs of the vocational examination he or she is asking
the court to order, then he or she is more likely to request
one, even if it is not necessary or warranted. This would
arguably protract litigation in child support cases, which would
not serve the best interests of families or children.
IN LIGHT OF ALL OF THESE POLICY CONCERNS, THIS COMMITTEE SHOULD
CONSIDER WHETHER VOCATIONAL EXAMINATIONS ARE APPROPRIATE IN
CHILD SUPPORT CASES WHERE THEY WOULD NOT SERVE THE SAME PURPOSE
AS IN SPOUSAL SUPPORT CASES, AND COULD POTENTIALLY BE USED TO
DISFAVOR STAY-AT-HOME PARENTS.
Support : Association of Certified Family Law Specialists;
Family Law Section of the State Bar
Opposition : None Known
HISTORY
Source : Conference of California Bar Associations
Related Pending Legislation : None Known
Prior Legislation : AB 2084 (Montanez) of the 2004 Legislative
Session would have permitted a court in an action for child
support to order a party to submit to an examination by a
vocational training counselor. This bill was never heard.
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