what factors do judges consider when awarding attorney fees in custody cases

by Titus Wisoky 8 min read

Before a court may award costs and counsel fees, the court must consider, (1) the financial status of each party; (2) the needs of each party; and (3) Whether there was substantial justification for bringing, maintaining or defending the proceeding. Md. Fam Law Article 12-103, See also Harbom v. Harbom, 134 Md. App. 430 (2000).

In deciding whether to award attorney's fees and costs the family court must consider: (1) each party's ability to pay his or her own fee; (2) the beneficial results obtained by the attorney; (3) the parties' respective financial conditions; and (4) the effect of the fee on each party's standard of living.

Full Answer

Why do judges decide who should pay for lawyers fees?

Dec 29, 2014 · When awarding fees, the family court judge will consider a range of factors, including the conduct of parties in and out of court as well as the income and overall financial outlook of the parties. Behaving badly in court or filing frivolous motions that waste time and money are good ways to get slapped with a fee award and do not go unnoticed by judges.

When does a court have the authority to award Attorney’s fees?

Apr 12, 2017 · There are specific findings of fact that must be included in the attorney fee order. There must be findings to show the movant’s entitlement to the fee, and then the court must make findings to support the reasonableness of the amount awarded. Cunningham v. Cunningham, 171 N.C. App. 550 (2005).

What do judges look for in a custody case?

Jun 01, 2014 · There are many factors spelled out in OCGA 19-9-3. In general, the court will look out for the best interests of the child. No, he cannot win custody just because he has money but it would be best for you to borrow money or use a credit card to afford your own representation, and request that he reimburse attorney's fees at a later time.

Can a court order a party to pay for legal fees?

In deciding whether to award attorney’s fees and costs the family court must consider: (1) each party’s ability to pay his or her own fee; (2) the beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; and (4) the effect of …

Who pays attorney fees in child custody cases California?

Pursuant to Family Code 2030 et seq., California Family Courts are authorized to make an order requiring any party to litigation to pay a reasonable portion of the opposing party's attorney's fees, so that the latter can maintain or defend a proceeding.

What are 271 sanctions?

Family Code 271 is one of the most powerful code sections in California family law. Family Code 271 allows for sanctions in the form of attorney's fees and costs when a family law litigant, or his or her attorney, violates its policy. For that reason, such issues usually end up in front of the family law judge.

When can you recover attorney fees in California?

California is no different than much of the jurisdictions in the U.S. Specifically, attorneys' fees are not recoverable as an item of damages in California with respect to a civil lawsuit unless authorized by (1) a statute or (2) a contract. (CCP §1033.5).Nov 21, 2017

How much does a family law attorney cost in California?

That said, in California: Experienced attorneys charge $300-500 per hour. A simple, amicable divorce costs around $6,000. The average cost for a divorce is $17,500.Jan 11, 2022

What is a sanction in Family Court?

In those situations, there are a number of sanctions which are available to the Court including:- Imposing contact activities such as such as parenting classes. Requiring Cafcass officers to monitor a person's compliance and report back to the Court. Imposing curfews, electronic tagging and/or unpaid work.Mar 2, 2017

What is a 217 hearing?

Under Family Code section 217, at a hearing on any request for order brought under the Family Code, absent a stipulation of the parties or a finding of good cause under (b), the court must receive any live, competent, and admissible testimony that is relevant and within the scope of the hearing.

How long do you have to file a motion for attorney fees in California?

(c) Attorney's fees on appeal

The parties may by stipulation filed before the expiration of the time allowed under (c)(1) extend the time for filing the motion up to an additional 60 days in an unlimited civil case or 30 days in a limited civil case.

What costs are recoverable in California?

A: California Code of Civil Procedure Section 1033.5 details recoverable costs. Such costs include court filing fees, law and motion fees, jury fees, expert witness fees (if ordered by the court), service of process, and transcriber expenses associated with depositions.Feb 23, 2016

What is a fee motion?

Fee motion means a motion, complaint or any other pleading seeking only an award of attorney's fees and related nontaxable expenses; Sample 1.

How much does it cost to file for custody in California?

A fee of $25 is generally required for filing either a custody or visitation petition in court. There may be an additional fee for serving the other parent with the custody papers, which is usually done by a sheriff, third party, or process server.Dec 31, 2021

Can costs be awarded in Family Court?

Legal costs in family law proceedings may include Court fees, the costs of obtaining legal advice, and the costs involved in gathering legal evidence. There are some circumstances however, where the Court may make a Costs Order against one party to pay all or some of the other party's legal costs.

How long is a lawyer retainer good for?

A lawyer cannot claim the retainer fee until they have completed work and provided an invoice to the client. The retainer is still the possession of the client until used for legitimate expenses as detailed in the retainer agreement. The amount in the trust account will not expire.

What is reasonableness of attorney fees?

Reasonableness of Fees . The amount of reasonable attorney fees awarded is reviewed for abuse of discretion. It is clear, however, that in supporting a “reasonable” fee award, the court must make findings of fact as to the nature and scope of legal services rendered; attorney skill and time required; and the attorney’s hourly rate and reasonableness in comparison to others. Simpson v. Simpson, 209 N.C. App. 320 (2011). A judge who witnessed hearings or the trial of a custody matter is in a good position to assess the skill and effectiveness of the attorney. But in almost every case, the trial court will also require the attorney for the movant to submit an affidavit that sets out facts to support each of the reasonableness factors. If an affidavit fails to state that the attorney’s hourly rate is reasonable in comparison to other rates in the area, the judge is permitted—although by no means required—to take judicial notice of a reasonable rate (if the judge in fact has such knowledge). The Court of Appeals has “stress [ed], nonetheless, that the better practice is for parties to provide evidence of the customary local rate [.]” Id . And what if the attorney’s affidavit does make the proper averment, but the court is unconvinced? The judge of course is not required to accept the statement on its face. Some judges may also require supporting affidavits from other local attorneys, and those affidavits will be similarly scrutinized. In the end, a judge may effectively reduce the hourly rate by calculating a fee based on a rate the judge knows to be reasonable.

Who is entitled to fees in a lawsuit?

Entitlement to Fees . Fees may only be awarded to “an interested party acting in good faith who has insufficient means to defray the expense of the suit.” A court’s determination of these factors is reviewed de novo on appeal. Hudson v. Hudson, 299 N.C. 465 (1980).

What should accompany a fee affidavit?

Accompanying a fee affidavit should also be a detailed timesheet or invoice that breaks down the work performed , when, and by whom. A timesheet that merely set forth dates and hours spent working for the movant, but which provided no descriptions of the work performed, was not adequate to support a fee award. Davignon v. Davignon, 782 S.E.2d 391 (2016).

What happens if an affidavit fails to state that the attorney's hourly rate is reasonable

If an affidavit fails to state that the attorney’s hourly rate is reasonable in comparison to other rates in the area , the judge is permitted— although by no means required—to take judicial notice of a reasonable rate (if the judge in fact has such knowledge).

What is the purpose of the fee shifting provision in 50-13.6?

Policy. The purpose of the fee-shifting provision in 50-13.6 is not to act as sanction against the party ordered to pay the other’s fees. Instead, it is to help level the playing field for a party at a financial disadvantage in litigating custody of a child. As our Supreme Court has said, the statute helps make it possible for a party “to employ ...

What is the statute for child custody?

The statute provides that: In an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, the court may in its discretion order payment of reasonable attorney’s fees to an interested party acting in good faith ...

Can a multi claim award include fees?

An award under this statute may include only fees incurred in pursuing the child custody and support claims. See Robinson v. Robinson, 210 N.C. App. 319 (2011) (error not to cull out fees related to equitable distribution claim); Cunningham, 171 N.C. App. 550 (2005) (error to include fees related to TPR action). At a minimum, then, the movant in a multi-claim action should provide time records that allow the court to see what time was spent on the relevant claims.

Alyson Faren Lembeck

I agree with my colleagues. You should seek an attorney that has experience with dealing with custody disputes. If he contests custody, you will likely need to appoint a guardian ad litem in your case. This person will do a thorough investigation and report to the judge what is in your child's best interest.

John Taylor Hopkins IV

I agree with most of the advice previously given. But I would be careful about disallowing the father's contact with the child. You need to have a temporary hearing set as soon as possible. His failure to pay any support and your possible refusal to allow him to see the child are both potentially negative factors.

Glen Edward Ashman

Let me stress that you will be at a huge disadvantage without a lawyer and need to speak to one ASAP. That may frankly be the difference between a good and bad outcome, as if he outlawyers you, you may never effectively present your case.

John B. Lyle

It is not uncommon for a husband who is accustomed to being in control of things to use that threat in a divorce case. They have a hard time coming to grips that they cannot dictate who gets the child just because they have more money. The bottom line is that the Judge will make that decision based on the child's best interest.

Jordan Jacob Hendrick

There are many factors spelled out in OCGA 19-9-3. In general, the court will look out for the best interests of the child. No, he cannot win custody just because he has money but it would be best for you to borrow money or use a credit card to afford your own representation, and request that he reimburse attorney's fees at a later time.

Daniel Ellis Rice

I advise that you go ahead and speak with a family law attorney about this confidentially. A spouse's employment and/or income (or lack thereof) is not a "make or break" factor, but it is relevant.

What does a judge consider when making a custody decision?

Judges consider whether each parent has the capacity to abide by a parenting plan when making child custody decisions, and they consider each parent’s income. The availability of family support is also important: grandparents or other relatives who can help financially or share child care responsibilities bolster a parent’s case for sole or primary custody – especially if the other parent lacks that support.

What are the issues that a judge may consider when deciding custody of a child?

Psychological disorders, overwhelming stress, drug or alcohol abuse, and mental health crises can prevent a parent from acting in their child’s best interests. Judges may order parents to seek therapy or attend counseling as part of a parenting plan. More punitive measures, such as mandatory drug testing and monitored visitation, may be ordered in cases where a parent’s capacity to safely care for their child is in question.

What is the role of a judge in custody?

Judges are responsible for evaluating the quality of the relationships. If a child has a strong attachment to one parent to the point where separation causes distress, a judge may agree to a disproportionate physical custody arrangement favoring that parent. But, if a forensic child psychologist or other mental health professional deems that attachment detrimental to the child’s best interests, more frequent custody exchanges in conjunction with family therapy may be ordered.

Why is it important to make the right decision in custody cases?

Making the right decision in a custody case is crucial to ensuring the child’s wellbeing. However, with limited time for arguments and each parent telling a different story, any bias on the court’s part may lead to a decision that is not in the best interest of the child, including placing them in a home where they are at risk of abuse or neglect.

Why is physical well being important in court?

A parent’s physical well-being is important to the court as well. Untreated health problems can impact a parent’s ability to care for a child on their own. Disabilities can also affect whether or not sole physical custody is appropriate. Here, family support can provide a mitigating factor.

When can a parent get partial custody of a child?

For example, if a parent has a job that makes them unable to pick a child up from school and family support is unavailable, partial physical custody can be awarded during the summer months. The child would reside primarily with the parent best able to meet their needs during the majority of the year.

Who can do a custody evaluation?

Given these high stakes, in contentious cases, judges may order a custody evaluation to be administered by a qualified expert such as a forensic child psychologist. Forensic psychologists are especially valuable in tough cases where grounds for full custody of a child are disputed or the fitness of a parent or guardian is in question. Their years of experience help judges come to a decision in the best interests of the child.

How many factors are considered in custody decisions?

In order to decide custody matters, courts consider what is in the best interest of the child. The court must consider the following sixteen (16) factors, giving weighted consideration to those factors which affect the safety of the child, when rendering its decision.

What are the two types of custody?

There are two types of custody: legal and physical. Legal custody involves the right of parents to make major decisions concerning a child, including, but not limited to; medical, educational, religious, participation in after school activities, etc. There are two forms of legal custody: sole and shared. Sole legal custody provides for one parent to make all of the aforementioned decisions. Shared legal custody requires the parents to consult one another when making said decisions. Absent a showing that one party is incapable of making such decisions, courts will usually order shared legal custody.

What is physical custody?

Physical custody pertains to where the child resides. Primary/sole physical custody permits one parent to have the child, in his/her residence, the majority of the time. Joint physical custody allows both parents to have significant time with the child, in his/her residence.

What is shared custody?

Shared legal custody requires the parents to consult one another when making said decisions. Absent a showing that one party is incapable of making such decisions, courts will usually order shared legal custody. Physical custody pertains to where the child resides.

What are the parental duties of a child?

The parental duties performed by each party on behalf of the child. The need for stability and continuity in the child’s education, family life and community life. The availability of extended family. The child’s sibling relationships. The well-reasoned preference of the child, based on the child’s maturity and judgment.

4 attorney answers

If the other party's applications are frivolous, have your attorney make an application for counsel fees. The disparity in income between the parties and the level of merit in the other party's applications will be the primary factors.

Louis Lawrence Sternberg

You must file a motion for counsel fees. The primary consideration will be a disparity of income between you & your spouse. That said, if the applications were frivolous, one can also ask that your spouse be sanctioned in the form of counsel fees. For a 2d opinion, schedule a consult with a NYC Divorce attorney.

David Ivan Bliven

You need to have your attorney file a separate petition for counsel fees and its up to the judge whether to grant the petition.

What is fee shifting?

This is referred to as “fee shifting.”. 1) Statute – Congress has passed many laws which allow for fee shifting in certain situations. These usually involve cases concerning issues of public policy, and are designed to help level the playing field between private plaintiffs and corporate or government defendants.

Is fee shifting common?

While fee shifting is not common, it does happen from time to time. There have been some efforts to adopt fee shifting more generally in the U.S., but this is unlikely to happen any time soon.

Who determines fees for a lawyer?

by lawyers, fees are determined privately between attorney and

Does the amount the client agreed to pay the attorney necessarily mean?

the amount the client agreed to pay the attorney does not necessarily

Did the Court in Alyeska have an authorizing statute?

absence of such an authorizing statute, the Court in Alyeska did