New ruling warns litigants not to treat vocational evaluations like automatic discovery tools
If you’re in the middle of a child support or custody dispute and thinking about forcing the other parent into a vocational evaluation, hit pause. A new case out of the Fourth District Court of Appeal, Mercado v. Superior Court of Orange County (2024), just clarified the limits of when, and how, you can do that.
Spoiler: you can’t just throw a vocational evaluation request into an RFO and expect it to stick—especially in parentage actions or when you haven’t teed up the actual issue of child support.
Background: Dad Wanted a Vocational Evaluation, Mom Said No—And Won
In Mercado, the father filed a request for order (RFO) in a parentage case asking the trial court to compel the mother to undergo a vocational evaluation. The trial court granted the request. Mom pushed back, hard- and filed a writ. The Court of Appeal granted it, reversing the trial court and entering an order denying the vocational eval request outright.
What the Court Said- and Why It Matters
Let’s break it down:
Dad didn’t cite a statute that gave the trial court authority to order the evaluation. Family Code §4331, often cited for vocational evals, only applies in dissolution and legal separation cases for the purpose of determining spousal support. It doesn’t apply to parentage actions.
“There can be good cause for a vocational evaluation under section 4331 only if the examination is relevant to a determination of spousal support.” – Marriage of Stupp & Schilders (2017)
Family Code §3558 allows the court to order a parent into job training or work programs, but not to submit to a forensic evaluation.
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Vocational Evals & Child Support: A Narrow Path
Family Code §4058 (recently amended) allows courts to consider earning capacity in lieu of actual income only in certain cases:
- If a parent’s income is unknown, the court must consider earning capacity (§4058(b)(1)(A))
- If the parent’s income is known, the court may consider earning capacity, but only if doing so is in the best interests of the child (§4058(b)(1)(B))
What’s missing? Any mention of vocational evaluations. While legislative history suggests vocational evals may be considered in child support matters, the Court clarified they aren’t automatic, and they aren’t tools to force discovery or build leverage.
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No Evidence of Best Interests = No Vocational Eval
In Mercado, Dad didn’t even attempt to show how forcing Mom into a vocational eval would serve the child’s best interests. He didn’t allege she had the ability or opportunity to work. And the trial court didn’t explain its reasoning.
The result? The order compelling the vocational eval was vacated.
Key Takeaways
- Vocational evaluations aren’t default tools. You must show a pending child support issue and justify the evaluation under the proper statutory framework.
- No support pending = no evaluation. You can’t shoehorn a vocational eval request into a parentage case unless the issue of support is actually before the court.
- Best interests must be clearly articulated. If you’re relying on §4058(b)(1)(B), you must explain how imputing income is in the child’s best interest, considering their welfare, development, and parenting time.
- Discovery substitute? Absolutely not. Courts are drawing a clear line: vocational evals are not fishing expeditions.
A Final Note: What About Attorney Fees?
This case doesn’t answer whether a vocational evaluation could be ordered in connection with a fee request, say, to show a party is capable of contributing. The Court didn’t reach that issue because it wasn’t raised. So, for now, that door remains slightly ajar.
Bottom Line: If you’re requesting a vocational evaluation in a family law case, make sure you’re in the right type of proceeding, asking for the right reasons, under the right code section, with actual evidence. Otherwise, as Mercado makes clear, your request may not just be denied, it may be reversed on appeal.
Channe G. Coles
Family Lawyer
Santa Barbara & Ventura Counties
