(1)Existing law authorizes the court, in a proceeding for dissolution of marriage or for legal separation of the parties, to order a party to submit to an examination by a vocational training counselor to assess the partys ability to obtain certain employment, as specified. Existing law requires a vocational training counselor performing these examinations to possess specific educational and professional experiences, including, among other qualifications, a masters degree in the behavioral sciences.

This bill would modify the required qualification to serve as a vocational training counselor by allowing, in the alternative to the masters degree, a vocational training counselor to possess another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.

(2)Existing law requires a court, in a proceeding for court-ordered child support, to follow the statewide uniform guideline to determine the amount of child support to order, unless special circumstances exist. Existing law also requires a court to adhere to certain principles in these proceedings, including, among others, that each parent should pay for the support of the children according to his or her ability. Existing law defines the annual gross income of the parent for purposes of the statewide uniform guideline, and authorizes the court, in its discretion, to consider the earning capacity of a parent in lieu of the parents income, consistent with the best interests of the children.

This bill would specify that a court may, in exercising its discretion to consider the earning capacity of the parent as described above, take into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

(1)Existing law authorizes the court, in a proceeding for dissolution of marriage or for legal separation of the parties, to order a party to submit to an examination by a vocational training counselor to assess the partys ability to obtain certain employment, as specified. Existing law requires a vocational training counselor performing these examinations to possess specific educational and professional experiences, including, among other qualifications, a masters degree in the behavioral sciences.

This bill would modify the required qualification to serve as a vocational training counselor by allowing, in the alternative to the masters degree, a vocational training counselor to possess another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.

(2)Existing law requires a court, in a proceeding for court-ordered child support, to follow the statewide uniform guideline to determine the amount of child support to order, unless special circumstances exist. Existing law also requires a court to adhere to certain principles in these proceedings, including, among others, that each parent should pay for the support of the children according to his or her ability. Existing law defines the annual gross income of the parent for purposes of the statewide uniform guideline, and authorizes the court, in its discretion, to consider the earning capacity of a parent in lieu of the parents income, consistent with the best interests of the children.

This bill would specify that a court may, in exercising its discretion to consider the earning capacity of the parent as described above, take into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

(1)Existing law authorizes the court, in a proceeding for dissolution of marriage or for legal separation of the parties, to order a party to submit to an examination by a vocational training counselor to assess the partys ability to obtain certain employment, as specified. Existing law requires a vocational training counselor performing these examinations to possess specific educational and professional experiences, including, among other qualifications, a masters degree in the behavioral sciences.

This bill would modify the required qualification to serve as a vocational training counselor by allowing, in the alternative to the masters degree, a vocational training counselor to possess another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.

(2)Existing law requires a court, in a proceeding for court-ordered child support, to follow the statewide uniform guideline to determine the amount of child support to order, unless special circumstances exist. Existing law also requires a court to adhere to certain principles in these proceedings, including, among others, that each parent should pay for the support of the children according to his or her ability. Existing law defines the annual gross income of the parent for purposes of the statewide uniform guideline, and authorizes the court, in its discretion, to consider the earning capacity of a parent in lieu of the parents income, consistent with the best interests of the children.

This bill would require the court, if it considers specify that a court may, in exercising its discretion to consider the earning capacity of the parent as described above, to take into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

(1)Existing law authorizes the court, in a proceeding for dissolution of marriage or for legal separation of the parties, to order a party to submit to an examination by a vocational training counselor to assess the partys ability to obtain certain employment, as specified. Existing law requires a vocational training counselor performing these examinations to possess specific educational and professional experiences, including, among other qualifications, a masters degree in the behavioral sciences.

This bill would modify the required qualification to serve as a vocational training counselor by allowing, in the alternative to the masters degree, a vocational training counselor to possess another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.

(2)Existing law requires a court, in a proceeding for court-ordered child support, to follow the statewide uniform guidelines guideline to determine the amount of child support to order, unless special circumstances exist. Existing law also requires a court to adhere to certain principles in these proceedings, including, among others, that each parent should pay for the support of the children according to his or her ability. Existing law defines the annual gross income of the parent for purposes of the statewide uniform guideline, and authorizes the court, in its discretion, to consider the earning capacity of a parent in lieu of the parents income, consistent with the best interests of the children.

This bill would authorize the court, in a proceeding involving child support, except if a parent is receiving need-based public assistance, and if the court determines that doing so is in the best interest of the child or children, as specified, to order a party to submit to an examination by a vocational training counselor pursuant to conditions and procedures similar to ordering vocational training a party to submit to an examination by a vocational training counselor in a proceeding for dissolution of marriage or for legal separation of the parties. The bill would authorize a the court to impose the enumerated sanctions for failure to submit to an ordered examination, provided the sanction is in the best interest of the child or children.

(1)Existing law authorizes the court to appoint a child custody evaluator to conduct a child custody evaluation in a contested proceeding involving child custody or visitation rights.

This bill would authorize a court to appoint a child custody evaluator, a mediator, or an expert witness, as the court deems appropriate, to conduct the child custody evaluation.

(2)Existing law authorizes the court, in a proceeding for dissolution of marriage or for legal separation of the parties, to order a party to submit to an examination by a vocational training counselor to assess the partys ability to obtain certain employment, as specified. Existing law requires a vocational training counselor performing these examinations to possess specific educational and professional experiences, including, among other qualifications, a masters degree in the behavioral sciences.

This bill would modify the required qualification to serve as a vocational training counselor by allowing, in the alternative to the masters degree, a vocational training counselor to possess another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.

(3)Existing law requires a court, in a proceeding for court-ordered child support, to follow the statewide uniform guidelines to determine the amount of child support to order, unless special circumstances exist. Existing law also requires a court to adhere to certain principles in these proceedings, including, among others, that each parent should pay for the support of the children according to his or her ability.

This bill would authorize the court, in a proceeding involving child support, except if a parent is receiving need-based public assistance, to order a party to submit to an examination by a vocational training counselor pursuant to conditions and procedures similar to ordering vocational training in a proceeding for dissolution of marriage or for legal separation of the parties. The bill would authorize a court to impose the enumerated sanctions for failure to submit to an ordered examination, provided the sanction is in the best interest of the child or children.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2780

Author:(Bloom)

As Amended Ver:June 11, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Expands the educational qualifications for vocational counselors appointed in spousal support proceedings. Specifically, this bill:

1. Expands the educational qualifications required for a vocational training counselor appointed to conduct a vocational evaluation as part of a spousal support proceeding to include not only a master's degree in behavioral sciences, but any other post-graduate degree that the court finds provides sufficient training for the degree holder to perform the vocational evaluation.
2. Requires the court, in a child support proceeding where the court is considering the earning capacity of a parent in lieu of that parent's income, to consider the overall welfare and the developmental needs of the children, and the time that parent spends with the children.

The Senate amendments delete the expansion of a vocation training evaluation to child support.

EXISTING LAW:

1. Requires that parents have an equal obligation to support their minor children. Establishes a uniform, statewide guideline for calculating child support, based on the income of both parents and the time they each spend with the children. (Family Code Sections 3900 and 4000 et seq. Unless stated otherwise, all further references are to that code.)
2. In determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, allows a court, in its discretion, to consider the earning capacity of that parent in lieu of the parent's income, consistent with the best interests of the children. (Section 4058.)
3. Allows a court, in a dissolution or legal separation proceeding, to order one spouse to support the other spouse, based on the standard of living established during the marriage, for a period of time the court considers just and reasonable, considering various factors. Creates special rules for long- and short-term marriages. (Section 4320 et seq.)
4. Allows a court, in a dissolution or legal separation proceeding and for good cause, to order a party to submit to a vocational examination to assess the party's ability to obtain employment based upon the party's age, health, education, marketable skills, employment history, and the current availability of employment opportunities. Provides that the focus of the examination is an assessment of the party's ability to obtain employment that would allow the party to maintain themselves at the marital standard of living. Requires the appointed vocational training counselor to have specific education and training qualifications. (Section 4331.)

FISCAL EFFECT: None

COMMENTS: Today, a family court, when considering an award of spousal support, can order a vocational evaluation of a spouse. The vocational evaluation must be done by an evaluator with specified education and experience requirements. This bill expands vocational evaluations by increasing the educational backgrounds permitted for vocational evaluators.

Basics of spousal support and vocational assessments. In California, spousal support is awarded, for the most part, without regard to the merits or procedural posture of the case. Spousal support is, for the most part, discretionary. Courts can order spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage. (Section 4330.) When making an order for spousal support, the court may advise the spouse receiving the support that they should make reasonable efforts to become self-supporting, unless the marriage is of long duration, generally presumed to be 10 years or more. (Sections 4330 and 4336.) In making a spousal support award, the court is required to consider, among other factors, the marketable skills of each party, the parties' ability to pay spousal support, the needs of each party, the assets of each party, the ability of each party to engage in employment considering the interests of dependent children, any history of domestic violence, and any other factors that the court determines are just and equitable. (Section 4320.)

Vocational assessments are specifically allowed in spousal support proceedings. A court may, for good cause, order a spouse to submit to a vocational examination to assess the party's ability to obtain employment based upon the party's age, health, education, marketable skills, employment history, and the current availability of employment opportunities. (Section 4331.) The focus of the examination is an assessment of the spouse's ability to obtain employment that would allow that party to maintain themselves at the marital standard of living. The idea is that spouses, particularly in marriages of short-duration, should be able to be self-supporting as soon as possible and the vocational assessment may help the court determine when that is. In order to help a supported spouse become self-supporting, the court can order the supporting spouse, in addition to paying spousal support, to pay any costs for counseling, retraining, or education necessary to help the supported spouse obtain reasonable employment. (Ibid.) Courts today have broad discretion to make spousal orders that reflect the length of the marriage, the standard of living of the marriage, and the ability of the spouses to support themselves at that level, with or without the vocational assessment.

This bill expands the educational requirements of vocational counselors. The statute allowing the court to require a vocational assessment for a spousal support determination has specific education and training requirements for the vocational training counselor – the person conducting the assessment. Section 4331 defines a 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." The statute also requires that the counselor have specific, minimum qualifications in order to be appointed by the court, including being qualified to administer and interpret inventories for assessing career potential; demonstrating ability in interviewing clients and assessing marketable skills with understanding of age constraints, physical and mental health, previous education and experience, and time and geographic mobility constraints; having knowledge of current employment conditions, job market, and wages in the indicated geographic area; and having knowledge of education and training programs in the area with costs and time plans for these programs. Of particular relevance for this bill, the vocational counselor must have a master's degree in the behavioral sciences.

This bill expands the educational requirement to allow a court to appoint a vocational training counselor if that person has either a master's degree in the behavioral sciences or other post-graduate degree that the court finds provides sufficient training to perform a vocational evaluation. While neither the author nor the sponsor has provided examples of the types of degrees that might be included in this new, broader definition, beyond degrees in psychology or counseling that would be included under existing law, it is anticipated that the list would still be fairly limited to ensure that the appointee has the "sufficient training to perform a vocational evaluation," as required by this bill.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0003562

 CONSENT  

Bill No: AB 2780

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/19/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 72-0, 5/7/18 (Consent) - See last page for vote

SUBJECT:

SOURCE: Family Law Executive Committee of the California Lawyers Association

DIGEST:

This bill provides that a vocational training counselor allowed to conduct the vocational examinations in spousal support proceedings is not required to have a master’s degree in the behavioral sciences, but could instead meet the educational requirement with another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation. This bill also provides that in determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, a court, in its discretion may consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

ANALYSIS:

Existing law:

1. 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.)
2. Provides that parents have an equal obligation to support their minor children and establishes a uniform, statewide guideline for calculating child support, based on the income of both parents and the time they each spend with the children. (Fam. Code Secs. 3900 et seq. and 4000 et seq..)
3. Provides that courts shall adhere to the principle that child support guidelines take into account each parent’s actual income. (Fam. Code Sec. 4053.)
4. Provides that each parent should pay for support of the children according to his or her ability to pay. (Fam. Code Sec. 4053.)
5. 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(b).)
6. Allows a court, in a dissolution or legal separation proceeding, to order one spouse to support the other spouse, based on the standard of living established during the marriage, for a period of time the court considers just and reasonable, considering various factors, and provides special rules for long term marriages and short term marriages. (Fam. Code Sec. 4320 et seq.)
7. Allows a court, in a dissolution or legal separation proceeding and for good cause, to order a party to submit to a vocational examination to assess the party’s ability to obtain employment based upon the party’s age, health, education, marketable skills, employment history, and the current availability of employment opportunities. The focus of the examination is an assessment of the party’s ability to obtain employment that would allow the party to maintain themselves at the marital standard of living. Appointed vocational training counselors are required to have specific education and training qualifications. (Fam. Code Sec. 4331.)
8. Provides that these appointed vocational training counselors shall have at least the following qualifications:

• A master’s degree in the behavioral sciences;
• Be qualified to administer and interpret inventories for assessing career potential; demonstrated ability in interviewing clients and assessing marketable skills with understanding of age constraints, physical and mental health, previous education and experience, and time and geographic mobility constraints;
• Knowledge of current employment conditions, job market, and wages in the indicated geographic area; and
• Knowledge of education and training programs in the area with costs and time plans for these programs.

This bill:

1. Provides that in determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, a court, in its discretion may consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.
2. Provides that the vocational training counselor is not required to have a master’s degree in the behavioral sciences, but could instead qualify with another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.

Background

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(b).) This bill, instead, changes the statute to provide that in determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, a court, in its discretion may consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

Existing law authorizes the court, in a dissolution proceeding raising spousal support issues, to order a party to undergo a vocational examination by a vocational training counselor to determine that party’s earning capacity. (Fam. Code Sec. 4320.) In an effort to expand the universe of vocational training counselors, this bill provides that the vocational training counselor is not required to have a master’s degree in the behavioral sciences, but could instead qualify with another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.

Comments

The author writes:

Vocational evaluators are important tools in family law proceedings to understand and assess employability and earning capacity. This bill seeks to increase access to vocational evaluations in family law cases by expanding the degrees that qualify to become a vocational evaluator.

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.) This bill provides that in determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, a court, in its discretion may consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/22/18)

Family Law Executive Committee of the California Lawyers Association (source)

OPPOSITION: (Verified 6/22/18)

None received

ASSEMBLY FLOOR: 72-0, 5/7/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chiu, Choi, Chu, Cooley, Cooper, Dahle, Daly, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Bonta, Chen, Cunningham, Eggman, Cristina Garcia, McCarty

Prepared by:

6/22/18 14:09:08

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2780 (Author:Bloom)

Version: June 11, 2018

Hearing Date: June 19, 2018

Fiscal: No

Urgency: No

Consultant: MEC

SUBJECT

Family law: support orders

DESCRIPTION

This bill would provide that a vocational training counselor allowed to conduct the vocational examinations in spousal support proceedings is not required to have a master’s degree in the behavioral sciences, but could instead meet the educational requirement with another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation. This bill would also provide that in determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, a court, in its discretion may consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

BACKGROUND

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(b).) This bill would, instead, change the statute to provide that in determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, a court, in its discretion may consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

Existing law authorizes the court, in a dissolution proceeding raising spousal support issues, to order a party to undergo a vocational examination by a vocational training counselor to determine that party’s earning capacity. (Fam. Code Sec. 4320.) In an effort to expand the universe of vocational training counselors, this bill would provide that the vocational training counselor is not required to have a master’s degree in the behavioral sciences, but could instead qualify with another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.

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 parents have an equal obligation to support their minor children and establishes a uniform, statewide guideline for calculating child support, based on the income of both parents and the time they each spend with the children. (Fam. Code Secs. 3900 et seq. and 4000 et seq..)

Existing law provides that courts shall adhere to the principle that child support guidelines take into account each parent’s actual income. (Fam. Code Sec. 4053.)

Existing law provides that each parent should pay for support of the children according to his or her ability to pay. (Fam. Code Sec. 4053.)

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(b).)

This bill would provide that in determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, a court, in its discretion may consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

Existing law allows a court, in a dissolution or legal separation proceeding, to order one spouse to support the other spouse, based on the standard of living established during the marriage, for a period of time the court considers just and reasonable, considering various factors, and provides special rules for long term marriages and short term marriages. (Fam. Code Sec. 4320 et seq.)

Existing law allows a court, in a dissolution or legal separation proceeding and for good cause, to order a party to submit to a vocational examination to assess the party’s ability to obtain employment based upon the party’s age, health, education, marketable skills, employment history, and the current availability of employment opportunities. The focus of the examination is an assessment of the party’s ability to obtain employment that would allow the party to maintain themselves at the marital standard of living. Appointed vocational training counselors are required to have specific education and training qualifications. (Fam. Code Sec. 4331.)

Existing law provides that these appointed vocational training counselors shall have at least the following qualifications:

• a master’s degree in the behavioral sciences;
• be qualified to administer and interpret inventories for assessing career potential; demonstrated ability in interviewing clients and assessing marketable skills with understanding of age constraints, physical and mental health, previous education and experience, and time and geographic mobility constraints;
• knowledge of current employment conditions, job market, and wages in the indicated geographic area; and
• knowledge of education and training programs in the area with costs and time plans for these programs.

This bill would provide that the vocational training counselor is not required to have a master’s degree in the behavioral sciences, but could instead qualify with another postgraduate degree that the court finds provides sufficient training to perform a vocational evaluation.

COMMENT

1. Stated need for the bill

According to the author:

Vocational evaluators are important tools in family law proceedings to understand and assess employability and earning capacity. This bill seeks to increase access to vocational evaluations in family law cases by expanding the degrees that qualify to become a vocational evaluator.

2. Earning capacity

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.) This bill would provide that in determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, a court, in its discretion may consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children.

Support: None Known

Opposition: None Known

HISTORY

Source: Family Law Executive Committee of the California Lawyers Association

Related Pending Legislation: None Known

Prior Legislation: None Known

Prior Vote:

Assembly Floor (Ayes 72, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

Date of Hearing: May 1, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2780

Author:(Bloom) – As Amended Ver:April 25, 2018

PROPOSED CONSENT

SUBJECT: support orders: VOCATIONAL ASSESSMENT

KEY ISSUES:

1. should a judge be able to order a vocational EXAMINATION as part of a child support proceeding?
2. SHOULD THE educational QUALIfications of those appointed TO CONDUCT VOCATIONAL EXAMINATIONs in CHILD OR SPOUSAL SUPPORT cases BE EXPANDED TO INCLUDE those with POST-GRADUATE DEGREEs that COURTS FIND PROVIDE SUFFICIENT TRAINING for the Degree holders TO PERFORM THE EXAMINATIONS?

SYNOPSIS

Today, a family court, when considering an award of spousal support, can order a vocational evaluation of a spouse. The vocational evaluation must be done by an evaluator with specified education and experience. This bill, sponsored by the Family Law Executive Committee of the California Lawyers Association, expands vocational evaluations in two ways. First it increases the educational backgrounds available for vocational evaluators. Second it allows vocational examinations in child support proceedings, not just spousal support proceedings. In support of the bill, the author states that a vocational evaluator can provide the court with clear and realistic expectations of a party’s employability for support purposes. He believes that vocational evaluators are underutilized tools in family law cases and that this bill should increase the appropriate use of vocational assessments in child and spousal support cases. There is no reported opposition to this bill.

SUMMARY: Allows for a vocational assessment of the parents in a child support proceeding and expands the educational qualifications for vocational counselors appointed in spousal or child support proceedings. Specifically, this bill:

1. Expands the educational qualifications required for a vocational training counselor appointed to conduct a vocational evaluation as part of a spousal support proceeding to include not only a master’s degree in behavioral sciences, but any other post-graduate degree that the court finds provides sufficient training for the degree holder to perform the vocational evaluation.
2. Allows a court, in a proceeding involving child support, except a proceeding in which a parent is receiving needs-based public assistance, to order a party to submit to an examination by a vocational training counselor, provided the court determines that doing so is in the best interest of the children considering their overall welfare, their developmental needs, and the time the party who may be subject to the vocational assessment spends with the children.
3. Requires that the vocational examination conducted in a proceeding involving child support include an assessment of the party’s ability to obtain employment based upon the party’s age, health, education, marketable skills, employment history, and the current availability of employment opportunities, with the focus of the examination on an assessment of the party’s ability to obtain employment consistent with their ability to earn and requires the vocational training counselor assigned to conduct the examination to have the same meaning and qualifications as required of counselors performing evaluations in spousal support cases.
4. Provides that the order under 2), above, may be made only on a motion, for good cause, and on notice to all parties; requires the order to specify the time, place, manner, conditions, scope of the examination, and the person who is to make the examination; and provides a sanction if a party does not comply with the order for vocational evaluation, but only if that sanction is in the best interest of the child.
5. Requires the court, in a child support proceeding where the court is considering the earning capacity of a parent in lieu of that parent's income, to consider the overall welfare and the developmental needs of the children, and the time that parent spends with the children.

EXISTING LAW:

1. Requires that parents have an equal obligation to support their minor children. Establishes a uniform, statewide guideline for calculating child support, based on the income of both parents and the time they each spend with the children. (Family Code Sections 3900 and 4000 et seq. Unless stated otherwise, all further references are to that code.)
2. In determining the annual net disposable income that a parent has for purposes of the child support guideline calculation, allows a court, in its discretion, to consider the earning capacity of that parent in lieu of the parent’s income, consistent with the best interests of the children. (Section 4058.)
3. Allows a court, in a dissolution or legal separation proceeding, to order one spouse to support the other spouse, based on the standard of living established during the marriage, for a period of time the court considers just and reasonable, considering various factors. Creates special rules for long- and short-term marriages. (Section 4320 et seq.)
4. Allows a court, in a dissolution or legal separation proceeding and for good cause, to order a party to submit to a vocational examination to assess the party’s ability to obtain employment based upon the party’s age, health, education, marketable skills, employment history, and the current availability of employment opportunities. Provides that the focus of the examination is an assessment of the party’s ability to obtain employment that would allow the party to maintain themselves at the marital standard of living. Requires the appointed vocational training counselor to have specific education and training qualifications. (Section 4331.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Today, a family court, when considering an award of spousal support, can order a vocational evaluation of a spouse. The vocational evaluation must be done by an evaluator with specified education and experience requirements. This bill expands vocational evaluations in two ways. First it increases the educational backgrounds permitted for vocational evaluators. Second it allows vocational examinations in child support proceedings, not just in spousal support proceedings. In support of the bill, the author states: "A vocational evaluator can provide the court with clear and realistic expectations of a party’s employability for support purposes. Vocational evaluators are underutilized tools in family law cases."

Basics of spousal support and vocational assessments. In California, spousal support is awarded, for the most part, without regard to the merits or procedural posture of the case. Spousal support is, for the most part, discretionary. Courts can order spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage. (Section 4330.) When making an order for spousal support, the court may advise the spouse receiving the support that they should make reasonable efforts to become self-supporting, unless the marriage is of long duration, generally presumed to be 10 years or more. (Sections 4330 and 4336.) In making a spousal support award, the court is required to consider, among other factors, the marketable skills of each party, the parties’ ability to pay spousal support, the needs of each party, the assets of each party, the ability of each party to engage in employment considering the interests of dependent children, any history of domestic violence, and any other factors that the court determines are just and equitable. (Section 4320.)

Vocational assessments are specifically allowed in spousal support proceedings. A court may, for good cause, order a spouse to submit to a vocational examination to assess the party’s ability to obtain employment based upon the party’s age, health, education, marketable skills, employment history, and the current availability of employment opportunities. (Section 4331.) The focus of the examination is an assessment of the spouse’s ability to obtain employment that would allow that party to maintain themselves at the marital standard of living. The idea is that spouses, particularly in marriages of short-duration, should be able to be self-supporting as soon as possible and the vocational assessment may help the court determine when that is. In order to help a supported spouse become self-supporting, the court can order the supporting spouse, in addition to paying spousal support, to pay any costs for counseling, retraining, or education necessary to help the supported spouse obtain reasonable employment. (Ibid.) Courts today have broad discretion to make spousal orders that reflect the length of the marriage, the standard of living of the marriage, and the ability of the spouses to support themselves at that level, with or without the vocational assessment.

This bill expands the educational requirements of vocational counselors. The statute allowing the court to require a vocational assessment for a spousal support determination has specific education and training requirements for the vocational training counselor – the person conducting the assessment. Section 4331 defines a 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.” The statute also requires that the counselor have specific, minimum qualifications in order to be appointed by the court, including being qualified to administer and interpret inventories for assessing career potential; demonstrating ability in interviewing clients and assessing marketable skills with understanding of age constraints, physical and mental health, previous education and experience, and time and geographic mobility constraints; having knowledge of current employment conditions, job market, and wages in the indicated geographic area; and having knowledge of education and training programs in the area with costs and time plans for these programs. Of particular relevance for this bill, the vocational counselor must have a master’s degree in the behavioral sciences.

This bill expands the educational requirement to allow a court to appoint a vocational training counselor if that person has either a master’s degree in the behavioral sciences or other post-graduate degree that the court finds provides sufficient training to perform a vocational evaluation. While neither the author nor the sponsor has provided examples of the types of degrees that might be included in this new, broader definition, beyond degrees in psychology or counseling that would be included under existing law, it is anticipated that the list would still be fairly limited to ensure that the appointee has the “sufficient training to perform a vocational evaluation,” as required by the bill.

Basics of child support and imputation of income. Unlike spousal support, child support is mandatory. And, as required by federal law, California has a statutory child support guideline – a mathematical formula – to calculate a noncustodial parent’s child support obligation. (Section 4055.) The guideline is based on both parents' income and the time each parent spends with the children. The result of the guideline is presumed to be correct, unless the court determines that application of the guideline would be unjust or inappropriate in a particular case due to special circumstances. In implementing the guideline, courts are required to adhere to certain principles, including:

• A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.
• Both parents are mutually responsible for the support of their children.
• The guideline takes into account each parent’s actual income and level of responsibility for the children.
• Each parent should pay for the support of the children according to his or her ability.
• The guideline seeks to place the interests of children as the state’s top priority.
• Children should share in the standard of living of both parents. (Section 4056.)

These principles make clear that a court must consider both parents' actual income and time with the children. The court may also consider the earning capacity of a parent, in place of that parent's actual earnings, if it is consistent with the best interests of the children. (Section 4058 (b).) Courts have used earning capacity and imputed income in child support cases when a parent was fired in an apparent effort to reduce his child support obligation (In re Marriage of McHugh (2014) 231 Cal.App.4^th 1238) and when a parent chose to pursue her education and spend more time with her children (In re Marriage of LaBass and Munsee (1997) 56 Cal.App.4^th 1331). However, a court refused to impute income to a lawyer who worked an 80 percent schedule (1,600 billable hours), since demanding what the firm considered fulltime employment (2,000 billable hours) would require an extraordinary work regime which would limit the time that parent could care for her young children. (In re Marriage of Lim and Carrasco (2013) 214 Cal.App.4^th 768.)

This bill permits vocational assessments in child support cases, but requires greater consideration of the children’s best interests. Today, there is no statutory authority to order a vocational assessment to determine a parent’s ability to pay child support. This has not, however, prevented courts from taking evidence of a parent’s ability to work, and the local job market, and imputing income based on potential employment. This bill would provide courts with potentially more understanding of a parent’s ability to earn by allowing for a vocational assessment in a child support case if there is good cause. The examination would include an assessment of the parent’s ability to obtain employment based upon that parent’s age, health, education, marketable skills, employment history, and the current availability of employment opportunities, but the focus of the examination would be on an assessment of the parent’s ability to obtain employment consistent with their ability to earn. The author believes that this allows an expert to provide the court with “clear and realistic expectations of a party’s employability for support purposes” which should help improve the fairness of support orders. The qualifications for the vocational counselor would be the same as those for the vocational counselor in spousal support cases.

Imputing income (with or without a vocational assessment) can be a necessary tool to help ensure that parents appropriately support their children. Quitting a well-paying job to avoid child support should have consequences that hopefully ensure the children get the appropriate level of support. However, there are two concerns with imputing income for a child support order based on an assessment of ability to earn – whether by a judge alone, with evidence provided by the parties, or by a vocational training counselor. First imputing income, if not done properly, can leave a noncustodial parent with a growing debt, accruing interest at 10 percent a year that he or she simply cannot pay. The child will not benefit – since support will not be paid – and neither will either parent. A vocational assessment should improve the accuracy of the assessment and the amount of money imputed to that parent. Imputing income to the custodial parent will likely result in a lower order from the noncustodial parent and, again if not done appropriately, will simply reduce the income available to support the children.

Second, if the imputation does not appropriately consider the best interests of the children – and just assumes that more money is always in their best interests – the imputation could reduce the care and nurture that children get from their parents.

To avoid that result, this bill specifically requires that the court, when determining whether to impute income and when considering a vocational assessment, must, when considering the best interest of the child, consider the overall welfare and the developmental needs of the children, and the time that parent spends with the children. This still gives courts broad discretion to make decisions in the best interests of children, but it should focus the court’s attention not just on the children's financial necessities, but also on the needs of the children to get care and attention from their parents, particularly the parent with whom they are spending most of their time. Like the attorney who chose not to bill 2,000 hours a year, the court should carefully consider the trade-offs between maximizing earnings and working an extraordinary work regime that limits the parents' care and nurturing of their children.

REGISTERED SUPPORT / OPPOSITION:

Support

Family Law Executive Committee of the California Lawyers Association (sponsor)

California Protective Parents Association

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334