Child Custody, Attorney Fees & the Good Faith Standard Under Washington Law

Child Custody, Attorney Fees & the Good Faith Standard Under Washington Law

All decisions regarding all aspects of child-custody are made at two sTAGes. First, in the Family Court before the Commissioners and then at trial (and on special occasions before trial) before the Judges. The decisions which most substantially effect the final outcome of a custody case are made at the Family Court sTAGe, in front of the Commissioners. These are hand-picked family law attorneys with substantial experience. They are paid well and generally have a very firm grasp of the subject matter under their jurisdiction. Within 2-3 weeks of your custody case being filed in most Washington state counties, either Party may make a motion before a Commissioner asking for attorney fees. They usually award anywhere from Body-2500 depending on how complex the case is. Many people don't like the idea of having to pay any of their spouses attorney fees. These attorney fees do not have to based on failure to meet the "good faith" standard, but based on the financial need of one Party and the ability of the other to pay it.

These standards are highly discretionary. Most of family law occurs within local practice and is not found within the cases. The case law, even where it exists, speaks more of whether the particular Commissioner or Judge was "reasonable or not" or exceeded the bounds of rational discretion. The result is that local practitioners are the key to knowing what a particular client's set of circumstances will likely yield in terms of attorney fees (or the good-faith standard as well).

Attorney fees sanctions for intransigence may be awarded against a Party who litigates a parenting plan issue in bad faith: In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929 (1997) (father's numerous frivolous motions, refusal to appear for his deposition and to read correspondence from mother's attorney constitutes intransigence); In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120, review denied, 120 Wn.2d 1002 (1992) ("foot-dragging" and obstructionist tactics that force opposing Party to seek legal remedies justifies fees award based on intransigence); In re Marriage of Harshman, 18 Wn. App. 116, 128, 567 P.2d 667 (1977) (forcing wife to resort to contempt proceedings to enforce maintenance and support proper basis for awarding attorney fees based on intransigence, and support proper basis for awarding attorney fees based on intransigence). Also, submitting parenting plans which give full custody to one parent who has spent much less time with the children may constitute intransigence depending on the circumstances.

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