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About Attorney’s Fees in Georgia Child Custody/Visitation Cases

by merlin on May 4th, 2017
  • Sumo

Recently, I was asked about attorney’s fees in child custody and visitation matters, and I answered that they are possible, but the American view is generally against granting legal costs of the winner against the loser in civil matters and this attitude seems to carry over in child custody and visitation cases, as well.  In other words, they are theoretically provided for (and legal authority for such fees is there), but that Courts often seem reluctant to grant them.  This requires further explanation, but it is based on two things: 1) observation and experience, and 2) a legal provision that actually tends to control the willingness of the trial judge to grant fees against the parent that it found against.

Section 19-9-3 provides the child custody rules between parties.  It sets down a list of what factors constitute the best interests of the child; it provides for what happens when a parent changes their address; it grants continuing jurisdiction to a Court to make future child custody and visitation determinations; it provides for attorney’s fees, separately from the provision made in Section 19-6-2.

Section 19-9-3(g) reads as follows:

“Except as provided in Code Section 19-6-2, and in addition to the attorney’s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney’s fees may be awarded at both the temporary hearing and the final hearing. A final judgment shall include the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not. An attorney may bring an action in his or her own name to enforce a grant of attorney’s fees made pursuant to this subsection.”

The law expressly states that the determination of payment of attorney’s fees by the parties is to be determined in proportions determined by the judge themselves.  However, the subsection also expressly refers to the general domestic attorney’s fee provision, Section 19-6-2.  Subsection (1) of that Code Section puts the fees in the sound discretion of the court

except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party”.

(emphasis supplied).

The rules that bind the parties in this kind of contest allow for the attorney’s fees to be apportioned by the trial judge to the contest loser (and they are made more likely to be granted the nastier their conduct throughout the dispute has been; judges are human, too), but a poor person is a poor person, and economic punishment is actually contrary to the goals of the statute.

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