Who Pays Attorney Fees in Child Custody Cases in California?

One important aspect of child custody cases that may be overlooked during the emotional struggles is who pays the attorney fees.

Divorces inevitably incur some legal costs as collaboration, mediation or even litigation may be necessary to resolve disputes—even in relatively amicable separations. These add to the financial burden for parents who must already meet the costs associated with raising a child.

Custody cases may involve considerable legal work both in and out of court. The allocation of who pays the costs for this work can be a major consideration for judges in California as they seek the fairest solution for parents while primarily protecting the child’s best interests.

During child custody cases in California, the allocation of attorney fees between the parents should, ideally, be fair and appropriate. These cases may involve extended negotiations, mediation or court appearances, so the legal fees can certainly mount up.

Sometimes, parents have significant income disparities and it would be unfair for the fees to simply be split down the middle. However, the guiding principle used for child custody fees is that each party should bear their legal costs unless one party has an unfair advantage or superior financial position.

If a significant difference in financial means can be demonstrated to the court, the judge is unlikely to allocate an even share of responsibility for the fees to both parents. Instead, the financially advantaged party may be ordered to pay a portion or all of the other party’s legal expenses.

When making this determination, multiple factors are considered.

The main factors considered by the courts in California when allocating legal expenses in child custody cases include:

• The child’s best interests (if affected)
• Each party’s financial resources, including income and assets
• Each party’s respective earning capacities
• The fee amounts involved (and how reasonable they are)
• Whether either party acted unreasonably or in “bad faith” during proceedings
• Whether either party caused unnecessary delays in proceedings (thereby increasing the legal costs)

The child’s best interests can be affected by the legal representation of parents in child custody cases.

For instance, if one parent has the means for legal representation but the other parent does not, this could prejudice proceedings in favor of the parent with the advantageous financial position—which could be contrary to the best interests of the child.

The judge should ensure that each parent is properly represented in such cases with competent legal counsel to ensure a fair hearing and outcome.

Judges in California may make court orders to confirm who is responsible for paying the child custody legal fees and ensure fair legal representation for both sides in the dispute.

These orders are generally intended to guide the payment of legal fees in child custody cases, sometimes placing limits on attorney fees while striving for a fair solution, especially for parents with uneven financial resources.

In some cases, the winning party in the dispute may be entitled to reimbursement for their attorney fees from the losing party. This is termed “fee-shifting” but this scenario is relatively rare in civil cases in the U.S. compared with other countries like the U.K.

Unreasonable or “bad faith” behavior or intentionally delaying proceedings could persuade a judge to order the responsible party to pay for all or part of the other parent’s attorney’s fees.

Couples in California generally do not require litigation to settle child custody disputes. While a court appearance is usually necessary for a judge to check and approve a negotiated family law agreement, ensuring that it is in the best interests of the child, a long, drawn-out legal battle is, thankfully, quite rare.

Negotiated agreements are a frequent outcome in divorces and legal separations. The parties negotiate a mutually satisfactory resolution without the need for a judge to decide the outcome. This is usually quicker, less expensive, and less stressful than litigation—and it can also help preserve the family relationship even after the parents separate.

Mediation can also lead to a negotiated agreement where the parents decide rather than a judge. A more cost-effective option than litigation, mediation involves a neutral third-party facilitating meetings between the parents to reach a mutually beneficial agreement on child custody.

Even with negotiated agreements, however, family law attorneys are generally involved so that each parent is clear on their obligations, their legal rights are protected, and the final agreement is legally enforceable—otherwise, a judge may not approve it and parents may be required to amend the document.

Negotiated agreements will incur some attorney fees but usually considerably lower fees than litigation. Each party is, again, usually responsible for their legal fees unless the agreement they sign specifically states otherwise or a judge orders it.

Some law firms offer sliding-scale fees based on income. An alternative option for parents who cannot afford an attorney is to seek a pro bono attorney or legal aid services, which provide free or reduced-cost legal assistance.

Some parents also petition the court for a fee waiver based on financial hardship if they face severe economic burdens due to legal expenses. To be granted a waiver, parents must submit supporting evidence of their financial hardship.

It is certainly possible to represent yourself in a child custody case. However, child custody laws and court procedures are complex in California. Self-representation may save you attorney fees but it may not result in the outcome you want. Most people don’t have the time or expertise to argue a legal case successfully.

Even with an attorney, there is no guarantee that you will get the arrangement that you want but with legal assistance from an attorney experienced in this field, the chances improve.

Parental responsibilities during separation and divorce include financially supporting a child as well as providing emotional support and care. The financial aspects can become challenging for some parents, especially with mounting legal costs—but we may be able to help.

The family attorneys at The Sands Law Group APLC in Los Angeles can help with child custody matters. Contact us online or call 213-788-4412 today for a free 15-minute phone consultation about your case.