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Published on December 20, 2024 · 7 min read
Key takeaways
The default rule in many child custody cases is that each parent pays their own attorney fees.
Depending on your state’s laws, the court might require the other parent to pay your attorney fees if your income and financial obligations significantly differ, or if the other parent commits misconduct that affects custody proceedings.
Some courts also have the authority to award the payment of attorney fees to a parent who wins their custody case.
Even if a parent engages in misconduct that might warrant an order for them to pay the other parent’s attorney fees, the court might still refuse to enter that order if the parent engaging in misconduct can’t afford to pay.
Parents may have to attend a hearing before a court orders one parent to pay the other’s fees.
The main issue in a child custody case is how much time your child will spend with each parent and who will make significant decisions in their life. But you’re not wrong to worry about how a child custody case may affect your wallet as well. Although you may face significant attorney fees and legal fees at the end of your custody case, you might not have to pay these fees on your own—or at all. Sometimes, the other party in your custody case might be responsible for your costs.
Determining who pays attorney fees in child custody cases doesn’t have a one-size-fits-all answer. How a court handles fees in your case depends on your circumstances, the laws of the state where your case is and the discretion of the judge. However, understanding the basic framework for attorney fees in these cases may provide clarity as you navigate the legal system. Read on for more information about how courts address child custody lawyer fees.
The different ways of charging child custody lawyer fees
Before discussing who pays attorney fees in child custody cases, it helps to understand how a lawyer may charge a parent for representation. Child custody attorney fees may vary widely depending on several factors, including:
The complexity of the case
The attorney’s experience
The attorney’s caseload
The amount of time the case may require
Some custody attorneys charge by the hour, while others charge flat fees or per service.
Under the different fee structures, some parents may have to pay a retainer fee for a child custody lawyer. A retainer is a payment made to an attorney before they begin working on a case. If an attorney ends up doing more work than the retainer is worth, they may charge the client more money according to the fee structure they agreed on. But if an attorney doesn’t perform enough work to earn the full retainer amount, the client gets the remaining unearned amount back.
In addition to attorney fees, parents in custody cases may incur other legal costs, including:
Filing fees
Costs for expert witnesses (such as child psychologists or education professionals)
Fees for mediation or custody evaluations ordered by the court
If a case becomes contentious and goes to trial, legal costs might escalate significantly.
Tip
When hiring a child custody attorney, don’t be afraid to shop around and negotiate. Many attorneys are willing to tailor their fees to your needs, which may take some of the financial stress out of your custody case. This may help if the court refuses to shift your legal costs to the other parent.
The default rule for paying attorney fees in civil cases
Divorces are civil cases In many civil cases, the default “American Rule” is that each party pays their own attorney and legal fees. The parties may have to pay their own fees regardless of a case’s outcome.
However, some state laws allow courts to shift attorney fees from one party to another. Shifting costs to another party in a child custody case may occur due to a party’s misconduct or inequity in the case.
Attorney fees awarded in child custody cases as sanctions for misconduct
Tip
If you don’t have many financial resources, see if the court might waive your legal fees (such as fees for filing petitions or motions). You may have to ask the court for this relief and provide proof of your limited finances.
Not everyone plays fair in family law disputes. Fortunately, some judges address foul play in family courts by ordering bad actors to pay the other parties’ legal fees.
Misconduct that might require one parent to pay the other’s legal fees in a custody case may include:
A parent filing a custody petition or other motion that wasn’t based on law or fact
A parent filing their custody petition or taking another action for an improper reason, such as harassing the other parent, delaying the case or increasing the other parent’s legal costs
A parent filing their custody petition or other motions in order to harass the other parent or draw out the proceedings rather than pursuing a legitimate legal argument in good faith
A parent not complying with a court’s orders, requiring the other party to take action to compel compliance
Before a court enforces an order for a parent to pay the other’s fees because of bad actions, the parent who might have to pay typically has the right to a hearing on the matter. Also, a court might not order a parent to pay the other’s fees if the request is unreasonable because of the parent’s income or financial obligations.
Tip
Before initiating your custody case, make a list of all the factors that might affect the outcome of your case. This may help you determine if you might need to pay for help beyond an attorney, such as expert witness testimony or mediation services. And that may help you better negotiate fees with your attorney—and know ahead of time if you may need to request a fee shift.
Court-ordered attorney fee sanctions in custody cases
Courts may order one parent to pay the other’s legal fees as a sanction for misconduct in a custody case.
Sanctionable misconduct includes:
Filing frivolous petitions or motions without a legal or factual basis.
Taking actions to harass the other parent or unnecessarily delay proceedings.
Ignoring court orders, forcing the other party to seek enforcement.
Pursuing litigation in bad faith rather than advancing a legitimate claim.
Before issuing fee sanctions, courts typically hold a hearing and consider the paying parent’s ability to pay to ensure any award is reasonable.ypically has the right to a hearing on the matter. Also, a court might not order a parent to pay the other’s fees if the request is unreasonable because of the parent’s income or financial obligations.
Equitable attorney fee awards in child custody cases
Courts can deviate from the American Rule (each side pays their own lawyer) when fairness requires it, most commonly when there’s a significant financial disparity between parents or when one parent prevails on key issues.
Court considerations include:
Each parent’s income, assets, and overall resources.
The best interests of the child(ren).
Documented financial need and the other parent’s ability to pay.
Fee shifting isn’t automatic. You’ll need to present evidence supporting your request, and judges decide on a case-by-case basis under state law.esent evidence of your financial need and the other parent’s ability to pay before you receive relief.
Tip
The laws in your state may not guarantee that the court will order the other parent to pay your costs. So if you need an attorney but worry that you can’t afford one, contact your state’s bar association. They may be able to refer you to a pro bono custody lawyer who’s willing to take on your case for free. This could be a solid option for reducing your legal expenses.
Why it’s important to work with a good family law attorney
A strong family law attorney does more than discuss fee-shifting; they help you calibrate strategy to your facts, manage costs, and keep the focus on your child’s best interests. The right lawyer will:
Explain your state’s standards for attorney fee awards and when courts grant sanctions or equitable relief.
Build and present evidence (financial disclosures, need/ability-to-pay proof, and records of misconduct when applicable).
Anticipate costs (experts, evaluations, mediation) and recommend a plan that’s legally sound and cost-effective.
Negotiate firmly yet pragmatically to avoid unnecessary hearings and reduce litigation spend where possible.
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The Marble Team
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