Attorney Fees in New York Custody Cases: Ensuring Access to Justice

Child custody disputes can be emotionally and financially draining. If you're facing a custody battle in New York, you may be worried about the cost of legal representation. The good news is that New York law provides for the awarding of attorney fees in custody cases under certain circumstances.

At Veridian Legal, our experienced NYC custody lawyers understand the financial challenges that parents may face. We're committed to ensuring that you have access to quality legal representation, regardless of your financial situation.

When Can Attorney Fees Be Awarded in a Custody Case?

New York courts recognize the importance of both parents having adequate legal representation in custody cases. To level the playing field, courts can order one spouse to contribute to the other spouse's legal fees, either in Family Court or Supreme Court.

Family Court:

• In Family Court custody cases, the court has the authority to award attorney fees to a parent under Family Court Act §651(b). This section states that the court may award counsel fees "as justice requires," taking into account the circumstances of the case and the parties' financial circumstances.

• The court has broad discretion in determining whether to award fees and the amount of the award. Some factors the court may consider include the relative financial circumstances of the parties, the complexity of the case, the merits of each party's position, and whether either party has engaged in frivolous or vexatious litigation.

Supreme Court:

• In Supreme Court divorce cases involving custody, attorney fees are typically addressed in a pendente lite motion, which requests temporary orders while the divorce is pending.

• Domestic Relations Law § 237(a) provides for the awarding of attorney fees to the "less monied spouse" in a divorce action. The statute states that the court may order either spouse to pay the reasonable counsel fees of the other spouse "to enable that spouse to carry on or defend the action."

Factors Considered by the Court:

When determining whether to award attorney fees and the amount of the award, the court considers several factors, including:

• The financial circumstances of both parties, including their income, assets, and debts.

• The relative merits of the parties' positions, meaning the strength of their legal arguments and the likelihood of success.

• The complexity of the case, including the number of issues involved and the amount of litigation required.

• Whether either party has unnecessarily delayed or complicated the proceedings, such as by failing to comply with court orders or engaging in unnecessary discovery disputes.

How to Request Attorney Fees in a Custody Case

Family Court:

• In a Family Court custody case, a request for attorney fees can be made in the initial petition or by a separate motion after the case begins.

• You'll need to submit a copy of your retainer agreement and financial disclosure affidavit, which provide detailed information about your income, expenses, and assets.

Supreme Court:

• In a Supreme Court divorce case, a request for attorney fees is typically included in a pendente lite motion.   

• You'll need to submit your retainer agreement, a copy of your tax returns, a recent W-2, and a statement of net worth.

• The motion should also be accompanied by an affidavit explaining your financial circumstances and legal arguments supporting your request.

Frequently Asked Questions (FAQs)

• What if I can't afford any lawyer fees upfront?

  Many attorneys offer payment plans or sliding scale fees to make legal representation more affordable. You can also inquire about legal aid services or pro bono programs that may be available to assist you.   

• How does the court determine the amount of attorney fees to award?

  The court will consider the factors listed above, such as the financial circumstances of the parties and the complexity of the case, to determine a reasonable amount of attorney fees. The court may also review the attorney's billing records to assess the reasonableness of the fees.

• Can I get attorney fees if I'm the higher-earning spouse?

  While it's less common, the higher-earning spouse may be awarded attorney fees if the court finds that the lower-earning spouse has acted in bad faith, unnecessarily prolonged the litigation, or has significantly more assets available.

• What if the other parent refuses to pay court-ordered attorney fees?

  If the other parent fails to pay court-ordered attorney fees, you can take steps to enforce the order, such as requesting wage garnishment or placing a lien on their property.

Contact Our Experienced NYC Custody Lawyers

At Veridian Legal, we understand the financial challenges of custody disputes. We offer flexible payment options and will work with you to ensure you have access to high-quality legal representation. Contact us today for a free consultation to discuss your case and learn more about how we can help you. Call: (212) 706-1007.