If the other parent makes a ridiculous request, ask for attorney’s fees.
Often, one of the parents in a child custody case makes an utterly ridiculous motion. It may be the non-custodial parent asking the court to transfer full custody of the children to him because he heard a rumor that the custodial parent wasn’t feeding them well. Or, it may be the custodial parent asking the court to permanently suspend the non-custodial parent’s visitation rights because the non-custodial parent has been repeatedly ten minutes late in returning the children home. Filing a motion over unsubstantiated or petty issues can be very costly to the side that has to respond to the motion — particularly if they’re required to retain counsel and file a responsive affidavit or certification in opposition to the motion. If the court schedules a formal hearing on the issue, it can become even more expensive in terms of attorneys fees.
As a tactical maneuver aimed at stopping frivolous motions, think about filing a cross-motion asking for attorneys fees and court costs. Some attorneys are reluctant to file these motion, especially if they believe that the judge is resistant to awarding such fees. Still, filing a cross-motion for sanctions (attorneys fees) can be a well-timed strategic device to blow the steam out of a ridiculous or ill-conceived motion filed by the other parent.
In filing a motion for attorneys fees, be sure to emphasize the nature of the case and the questions at issue. Remind the court that the case is not a simple one and that there are significant issues involving the health, safety, care and comfort of the children. Show what the current custody and parenting time arrangement is, by calling the court’s attention to the most recent court orders. Explain how, as a result of the other parent’s spurious motion, you were required to engage the services of your lawyer. Outline your lawyer’s credentials — years of experience, board certifications, and other distinctions. Highlight any of the other characteristics of your attorney’s skills and experience that will show the court the level of expertise you were required to invoke to defeat your ex’s unnecessary motion. State specifically how much time and labor the attorney dedicated to preparing your response to the motion and appearing on your behalf in court. If applicable, you should also show your inability to pay for the attorney, and the other side’s ability to pay.
If you — or your attorney — can demonstrate that the other parent’s motion was ill-planned, unnecessary and perhaps filed only to harass you or run up your counsel fees, you may be able to recover those fees. More importantly, you may succeed in teaching the other parent that there are potentially painful consequences for indiscriminately filing custody motion and abusing the legal process.