CUSTODY ATTORNEY FEES TIPS
CAL Family Code Section 3121:
How Can I Obtain Lawyer's Fees For My Custody Case?
Family Code section 3121 authorizes the family court to award attorney fees in custody cases, whether or not the parties were married or if there is a dissolution or legal separation action pending. Section 3121 tracks Family Code section 2030, and all the same principles apply as there except that this section is specific to custody litigation and disputes. You may want to read my tips to section 2030.
Family judges need to be reminded from time to time what these family code statutes say. For instance, subsection (a) directs that "the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights" by awarding attorney fees. This is powerful language. The key is whether there is a gross disparity of earnings such that one party can afford expert family law representation while the other cannot.
Subsection (f) allows you to make this request in open court. So, let's say you have a custody hearing next week and you are in over your head, and you've just finally bumped into one of the best sources of on-line information about all things family law - this website! - and now you realize you really need to find an attorney. Or, as commonly happens, you filed a Request for Custody Orders a month ago and received the other parent's responsive declaration in the mail yesterday, and you immediately notice that he or she has an attorney who is listed in the caption. You thought that they weren't going bring a lawyer in. What do you do?
Print and bookmark this page. When you attend next week's hearing tell the judge that you did not have the money to retain an attorney and you still don't, but that you learned when they filed their opposition papers that they were able to do so. Explain that the issues identified in the pleadings are very important to the children, and to you, and given what the other side is now claiming it is clear that you professional need help before the hearing takes place or the court rules on the pending application. You want the court to have all the information to determine what is in the children's best interests, and you believe the playing field should be equal. Possibly the other party has violated certain orders, or is delinquent in paying their child support or in reimbursing out of pocket medical expenses and the like. They ignored the court's order while effectively starving you out, thereby making it extremely difficult if not impossible for you to have the same due process rights that they seem to be enjoying. You'd like the matter continued so that you can retain a lawyer, and request pursuant to subsection (b), (e, and (f) that each side submit updated Income and Expense declarations along with all the necessary backup like tax returns and paystubs or, if the other party is self-employed, their bank statements for the past 12 months. These should be exchanged at least several days before the new hearing date and it might be most . Possibly, you might say, "we can even settle our differences if I too have the benefit of an attorney."
If the Court agrees to set a hearing (or even awards you fees on the spot), be diligent in interviewing and selecting an attorney quickly. Consider asking them to write a brief declaration that states their experience, the amount of their retainer, their hourly rate, and their willingness to become your attorney once you can afford to pay the retainer.
The good news is that competent judges understand the need for attorney fee awards as well as their obligation to award them, depending upon the numbers.
Want to read more about attorney fee issues in California divorce and family law?
CALIFORNIA FAMILY CODE
Family Code section 3121
(a) In any proceeding pursuant to Section 3120, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a government entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.
(b) When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.
(c) Attorney's fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.
(d) The court shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution or defense of a proceeding described in Section 3120, or any proceeding related thereto, including after any appeal has been concluded.
(e) Except as provided in subdivision (f), an application for a temporary order making, augmenting, or modifying an award of attorney' s fees, including a reasonable retainer to hire an attorney, or costs, or both, shall be made by motion on notice or by an order to show cause during the pendency of any proceeding described in Section 3120.
(f) The court shall rule on an application for fees under this section within 15 days of the hearing on the motion or order to show cause. An order described in subdivision (a) may be made without notice by an oral motion in open court at either of the following times:
(1) At the time of the hearing of the cause on the merits.
(2) At any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure. The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment.
(g) The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court to implement this section and develop a form for the information that shall be submitted to the court to obtain an award of attorney's fees under this section.