Attorney's Fees and Costs

A recent question was posted to me in a family law forum.  Given that many people ask the same question, I decided to post the question here, along with my answer.

Question: Do I have to pay for my wife's attorney or can the court appoint her a free one?
Question Detail: I served my wife with divorce papers and asked her to meet up with my lawyer so she can straighten everything out for us. She refuses and said that I have to get and pay for her lawyer. She only works part time but and I don't have the money either. I pay all the bills and have two kids. Can't she get a lawyer from the court?

The court in family law cannot appoint an attorney.  You are only entitled to have an attorney in a criminal proceeding.  There is no family law equivalent to a public defender.  However, the each party is entitled to have an attorney if they want and can afford one.  There are several statutes that allow the court to order one side to pay for an attorney for the other side, but the most relevant one to you will be Family Code Section 2030, which states:

" (a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, 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 governmental 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. (2) 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. (b) 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"

While there are other statutes that allow for the transfer of funds to pay attorney's fees, this is the most common section used.  Note that you can get an award of fees before you have actually hired an attorney, so use of this section can get you the retainer you need to hire a quality attorney.

Can my child testify in our family law case?

In 2007, a family law case made its way to the California Supreme Court.  That any case would make it is rare, that a family law case would be taken up is even more rare.  The case, Elkins v. Superior Court (2007), had a profound impact on the way family law matters are heard today and who may testify.

The case, which was filed in Contra Costa County, involved a situation which prevailed there at the time.  Due to limited court time, all family law trials were by declaration (writing) only and you were required to anticipate evidentiary issues and address them in your documents, or your evidence would be thrown out.  This happened to the father, who lost his case on a procedural technicality and fought to the highest court in the state.

The Supreme Court ruled that even family law matters have the right to a trial with live witnesses and to refuse to grant that was a denial of due process.  The Court ordered the state to come up with laws that protected the family law case's due process rights.  The Elkins case resulted in many new forms and new laws.  One of the most significant ones was that, under Family Code Section 3042, children ages 14 and over will be given the right to testify unless the court specifically determines that it is not in there best interests to do so.  

Under 3042, any party to the case or any other individual associated with the case may advise the court of the child's desire to testify and the court will allow it.  Whereas previously, children were almost never allowed to testify, now, their wishes can be heard and a strong voice for the best interests of the child will not be silenced.  As with all potential witnesses, care should be given before putting them on the stand, however in high conflict cases where children have suffered abuse, allowing them to be an active participant in the process can help promote healing while also allowing for a proper resolution of the custody case.

Parental Rights

I received the following legal question posted to me recently:

"Question: If a person is incarcerated, does their spouse have the right to get a divorce and take away parenting rights?
Question Detail: My husband's ex wife did this to him and my husband and I want to know if she was legally able to do so."



Often, people come to me asking about terminating parental rights or what their rights are.  They frequently confuse parental rights with custody.  If the above person was incarcerated, his rights likely were not terminated, but rather the mother was granted sole legal and physical custody of the child.

Legal custody is decision making authority, while physical custody refers to where the child lives.  As long as the child is a minor, then these are subject to modification.  The termination of parental rights, on the other hand, is used as a first step towards adoption by another person or persons. 

The other common thing asked is if someone can give up their parental rights to terminate their support obligation.  The general answer is no.  Again, parental rights should only be terminated prior to someone adopting the child, as the State of California believes that the child should have the benefit and financial support of two parents. 

To put it another way, a child is not a car.  You cannot give it up simply because the cost of maintenance as exceeded your expectations.