Custody – Can I get the other party to pay my Attorney fees?
When a complaint for custody is filed, there is hope the parents can decide what is best for their children with guidance from conciliators, attorneys, or mediators. There are contentious cases with numerous filings, hearings, and extensive litigation which results in significant legal fees. Clients often ask, “Can I ask for attorney fees?” My answer is you can ask, but it is rare they will be awarded.

The Court may award reasonable attorney fees if the conduct of the other party is “dilatory, obdurate, vexatious, arbitrary, or in bad faith.” 42 Pa.C.S.A. §2503. In custody cases a court may also award reasonable fees if the conduct of the other party is repetitive, obdurate, vexatious, or in bad faith. 23 Pa.C.S.A. §5339. What does this mean? Conduct where the purpose is to delay, take stand on a position for no legitimate purpose, provoking frustration, inconsistent, with the intent to deceive, or is unnecessary repetition. Essentially the parent’s conduct has no legal basis and without a legitimate purpose.

The Superior Court addressed this conduct in Moyer v Leone, 2021 Pa. Super 154. Father filed a Complaint for Custody on September 27, 2019. Within one year Father filed nine Petitions for Special Relief and five request to modify custody. On October 16, 2020, the trial court denied Father’s ninth Petition and awarded Mother $1,600.00 in attorney fees. The trial court held Father’s conduct was “repetitive, vexatious, or in bad faith. The Superior Court disagreed.

On August 4, 2021, the Superior Court filed an opinion reversing the trial court’s decision to aware Mother attorney fees. Father may have intended to frustrate Mother by filing so many petitions and motions in a short period of time, but that is not enough for an award of attorney fees. While nine petitions may seem repetitive, vexatious, and in bad faith; the trial court granted some of Father’s Petitions either in part or in its entirety. The trial court even modified the custody order and lifted Father’s supervision requirement. Therefore, while not all of Father’s petitions were granted, they did not lack merit and Father demonstrated a legitimate desire to spend more time with his child as soon as possible.

Based on this opinion, it is unlikely a Judge will order attorney fees just because one parent lost. Family law matters can become emotional, it is best to speak to an attorney who can explain to you the purpose of filing petitions and whether there is a legitimate basis.