ATTORNEY FEES In CUSTODY Cases: 2011 Family Code Amendments

2011 Family Code Changes Affecting Attorney Fee Requests

Along with other changes to the California Family Code brought about by the Elkins Committee's recommendations, Family Code section 3121 has been amended to make its language consistent with revised section 2030. Amended Family Code section 3121 is effective January 1, 2011.

Family Code section 3121 has always been more liberal than other attorney fees provisions in the California Family Code, but in my experience most lawyers, parties, and judges have acted like it did not exist. I have rarely seen an attorney argue for attorney fees under this section, probably because such arguments historically fell on deaf ears. That may be changing.

Section 3121 authorizes attorney fees in certain types of cases that are otherwise not mentioned in §2030, like paternity cases. It applies whenever custody is at issue.

An important difference between section 3121 and Family Code section 2030, besides the fact that 2030 deals with actions generally (dissolution, annulment, and legal separation) while 3121 is aimed at custody proceedings taking place in an OSC (Order to Show Cause) or NOM (Notice of Motion) format, is that attorney fee requests can be made "by an oral motion in open court" either at "the time of the hearing" or at any other time before entry of a judgment against a party whose default has been taken.

In other words, the request can be made without prior notice for the first time when the parties appear in court on a custody related application. However, I have never seen a Court willing to grant such an oral request, although clearly trial courts are directed to consider them. Possibly this will change, and certainly attorneys and parties seeking to get money to hire an attorney should be arguing the Elkins changes to stubborn judges. The likelihood that these judges will be reversed on appeal now for refusing to award fees to needy parties in appropriate cases is vastly improved beginning in 2011.

For more information about the grounds and procedures for seeking attorney fees in family law cases, please try my on-site search engine.

Thurman W. Arnold III, CFLS*

*State Bar of California, Board of Legal Specialization