Who pays attorney fees in child custody cases

In the midst of a child custody and wondering whether you or your spouse is responsible for attorney fees? Here’s what to know.

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What's Inside

Key Takeaways:

  • The default rule in many child custody cases is that each parent pays their own attorney fees.
  • Depending on your state’s laws, the court might require the other parent to pay your attorney fees if your income and financial obligations significantly differ, or if the other parent commits misconduct that affects custody proceedings.
  • Some courts also have the authority to award the payment of attorney fees to a parent who wins their custody case.
  • Even if a parent engages in misconduct that might warrant an order for them to pay the other parent’s attorney fees, the court might still refuse to enter that order if the parent engaging in misconduct can’t afford to pay.
  • Parents may have to attend a hearing before a court orders one parent to pay the other’s fees.

The main issue in a child custody case is how much time your child will spend with each parent and who will make significant decisions in their life. But you’re not wrong to worry about how a child custody case may affect your wallet as well. Although you may face significant attorney fees and legal fees at the end of your custody case, you might not have to pay these fees on your own—or at all. Sometimes, the other party in your custody case might be responsible for your costs.

Determining who pays attorney fees in child custody cases doesn’t have a one-size-fits-all answer. How a court handles fees in your case depends on your circumstances, the laws of the state where your case is and the discretion of the judge. However, understanding the basic framework for attorney fees in these cases may provide clarity as you navigate the legal system. Read on for more information about how courts address child custody lawyer fees.

The different ways of charging child custody lawyer fees

Before discussing who pays attorney fees in child custody cases, it helps to understand how a lawyer may charge a parent for representation. Child custody attorney fees may vary widely depending on several factors, including:

  • The complexity of the case
  • The attorney’s experience
  • The attorney’s caseload
  • The amount of time the case may require

Some custody attorneys charge by the hour, while others charge flat fees or per service. 

Under the different fee structures, some parents may have to pay a retainer fee for a child custody lawyer. A retainer is a payment made to an attorney before they begin working on a case. If an attorney ends up doing more work than the retainer is worth, they may charge the client more money according to the fee structure they agreed on. But if an attorney doesn’t perform enough work to earn the full retainer amount, the client gets the remaining unearned amount back.

In addition to attorney fees, parents in custody cases may incur other legal costs, including:

  • Filing fees 
  • Costs for expert witnesses (such as child psychologists or education professionals)
  • Fees for mediation or custody evaluations ordered by the court 

If a case becomes contentious and goes to trial, legal costs might escalate significantly.

Pro tip:

When hiring a child custody attorney, don’t be afraid to shop around and negotiate. Many attorneys are willing to tailor their fees to your needs, which may take some of the financial stress out of your custody case. This may help if the court refuses to shift your legal costs to the other parent.

The default rule for paying attorney fees in civil cases

Divorces are civil cases In many civil cases, the default “American Rule” is that each party pays their own attorney and legal fees. The parties may have to pay their own fees regardless of a case’s outcome. 

However, some state laws allow courts to shift attorney fees from one party to another. Shifting costs to another party in a child custody case may occur due to a party’s misconduct or inequity in the case.

Pro tip:

If you don’t have many financial resources, see if the court might waive your legal fees (such as fees for filing petitions or motions). You may have to ask the court for this relief and provide proof of your limited finances.

Attorney fees awarded in child custody cases as sanctions for misconduct

Not everyone plays fair in family law disputes. Fortunately, some judges address foul play in family courts by ordering bad actors to pay the other parties’ legal fees. 

Misconduct that might require one parent to pay the other’s legal fees in a custody case may include:

  • A parent filing a custody petition or other motion that wasn’t based on law or fact
  • A parent filing their custody petition or taking another action for an improper reason, such as harassing the other parent, delaying the case or increasing the other parent’s legal costs
  • A parent filing their custody petition or other motions in order to harass the other parent or draw out the proceedings rather than pursuing a legitimate legal argument in good faith
  • A parent not complying with a court’s orders, requiring the other party to take action to compel compliance

Before a court enforces an order for a parent to pay the other’s fees because of bad actions, the parent who might have to pay typically has the right to a hearing on the matter. Also, a court might not order a parent to pay the other’s fees if the request is unreasonable because of the parent’s income or financial obligations.

Pro tip:

Before initiating your custody case, make a list of all the factors that might affect the outcome of your case. This may help you determine if you might need to pay for help beyond an attorney, such as expert witness testimony or mediation services. And that may help you better negotiate fees with your attorney—and know ahead of time if you may need to request a fee shift.

Attorney fees awarded for equity or fairness

Two other scenarios where courts might deviate from the American Rule are when one parent has significantly fewer financial resources than the other or when a parent wins in court. In such cases, the court may order the wealthier or losing parent to contribute to the other parent’s legal costs and fees. This practice may prevent financial disparities from affecting a parent’s ability to stand up for their family.

Whether one parent has to pay the other’s legal fees in a custody case depends on the law where the case is heard. These decisions are typically made on a case-by-case basis, with the court considering factors such as:

  • Each parent’s income and assets
  • The best interests of the child(ren) involved

While the shifting of fees may ease the financial burden on a less-affluent parent, it might not be automatic. You might need to present evidence of your financial need and the other parent’s ability to pay before you receive relief.

Pro tip:

The laws in your state may not guarantee that the court will order the other parent to pay your costs. So if you need an attorney but worry that you can’t afford one, contact your state’s bar association. They may be able to refer you to a pro bono custody lawyer who’s willing to take on your case for free. This could be a solid option for reducing your legal expenses.

How an attorney may help

While many parents handle custody cases on their own, many others find legal representation helpful. There are many ways an attorney can help you understand who might pay the legal fees in your custody case and how to manage costs. They can:

  • Review the facts of your case to calculate your potential financial obligations in a custody case
  • Advise you on how to request fee shifting from the court or a waiver of other legal fees

An attorney may also be willing to negotiate to reduce your fees if you choose to hire them. So don’t hesitate to contact one. Many offer a free divorce consultation.

Sources

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1065&context=dlj_online;  https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/25/00324.htm; https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=271.; https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=23&div=0&chpt=53&sctn=39&subsctn=0; https://delcode.delaware.gov/title13/c007/sc02/index.html;  https://app.leg.wa.gov/RCW/default.aspx?cite=26.09.140; https://statutes.capitol.texas.gov/Docs/FA/htm/FA.6.htm#6.708; https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_50A/GS_50A-312.pdf; https://revisor.mo.gov/main/OneSection.aspx?section=452.355&bid=25025&hl=; https://iga.in.gov/laws/2020/ic/titles/31#31-17-7; https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/25/00324.htm;  

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Frequently asked questions

Is it possible to have attorney fees waived in child custody cases?

Yes. Depending on the laws in your state and the circumstances of your child custody case, a court might decide to make the other parent pay your attorney fees and legal costs. A court might order the other parent to pay if they engage in misconduct, if they have more resources than you or if you win your case.

Can the court award attorney fees to the winning party?

Sometimes. Multiple states have laws that allow family law courts to award attorney fees to the winning party. However, a court that has legal authority to award fees in these circumstances may decline to do so if it finds that awarding fees would be inappropriate.

What if a parent can’t afford to pay attorney fees?

A parent who can’t afford to pay attorney fees may have several options for reducing or eliminating their costs in a custody case. First, a parent could seek free representation from a pro bono attorney. Second, the parent could ask the court to order the other parent to pay their attorney fees. Third, a parent who can’t afford their attorney fees could ask the court to waive their other legal fees so that they have more money to cover legal representation.

Sources

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1065&context=dlj_online;  https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/25/00324.htm; https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=271.; https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=23&div=0&chpt=53&sctn=39&subsctn=0; https://delcode.delaware.gov/title13/c007/sc02/index.html;  https://app.leg.wa.gov/RCW/default.aspx?cite=26.09.140; https://statutes.capitol.texas.gov/Docs/FA/htm/FA.6.htm#6.708; https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_50A/GS_50A-312.pdf; https://revisor.mo.gov/main/OneSection.aspx?section=452.355&bid=25025&hl=; https://iga.in.gov/laws/2020/ic/titles/31#31-17-7; https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/25/00324.htm;

Disclaimer: This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.

This page includes links to third party websites. The inclusion of third party websites is not an endorsement of their services.

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