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Can the defendant and/or the defendant's lawyer in a child custody case sue the plaintiff for attorney's fees?

Atlanta, GA |

Unmarried parents, 1 minor child, no prior custody case or arrangement. Plaintiff filed for legitimation & custody, citing defendant unfit. Defendant requested mediation, plaintiff declined based on defendant's answer not wishing plaintiff to have custody. Defendant's attorney requested extension @ hearing, judge allowed but awarded plaintiff attorney's fees. Temporary order put in place. 2 emergency hearings: 1st filed by GAL & plaintiff's attorney - judge dismissed & awarded defendant attorney's fees; 2nd by plaintiff's attorney @ GAL's urging - judge dismissed, did not honor defendant's request for attorney's fees. Mediation followed - parties settled on joint custody w/defendant being primary. Defendant's lawyer insisted child support modification be handled by judge, not in mediation.

The original judge presiding over the case retired between 1st & 2nd emergency hearing. The actual/postponed hearing never took place - never made it on the calendar. At time of mediation the case was two years old. By the time of mediation neither party resides in the county the case was filed - defendant would not allow the case to change venues. The question is can the defendant's attorney claim the plaintiff "made a frivolous claim, been stubbornly litigious, or has otherwise acted in bad faith during the litigation", either based on the emergency hearings (which were filed due to the case being in "limbo" for so long) and/or since the plaintiff ultimately went with mediation?

Attorney Answers 3


  1. As your case should have clearly demonstrated to you, anyone can sue anyone else in a pending litigation for attorneys fees based on a claim of being stubbornly litigious.

    But I don't think you meant to ask "Can they sue?". I think your real question is "Will they win if they sue?". And the only answer that can be given to that question in this forum is "Maybe". The judge is going to listen to the arguments on both sides and make a decision (much as the judge has apparently done on numerous occasions in this case). But since there is no way of knowing at this point what both sides will argue, there is no way of telling you what is going to happen. You're going to have to trust your attorney's judgment regarding this (whether to pursue it if you are the defendant, or how to respond if you are the plaintiff).

    Good luck.

    ~ Kem Eyo

    The above answer is a general explanation of legal rights and procedures. It does not constitute legal advice. Nor does it establish an attorney-client relationship between the individual posting the question and the attorney providing the answer.


  2. Georgia law permits a court to award attorneys fees in both child custody and child support cases. The statutory authority that you have cited probably would not be used by a court in this case as a basis for awarding attorneys fees. If the plaintiff tried to settle the child support issue in mediation, but the defendant refused, then it is possible to receive an award of attorney's fees. However, whether or not fees would be awarded his clearly an issue for the court.

    Your best chance would be to discuss the issue with your attorney to make sure that the appropriate facts are presented to the court and its consideration of the child's poor issue. Sometimes a court will award fees when a party receives less after trial than they were offered at mediation. In your particular case, if the plaintiff (who I assume is the father) offered a child support award that was appropriate under the Georgia child support guidelines, but the defendant demanded that the case go to trial, then an award of the attorneys fees for preparing the case and taking it to court might be appropriate.

    You really need to speak to your attorney for further information.

    Nothing contained herein shall be considered or construed as creating an attorney client relationship between the party asking the question and the attorney. All legal problems are different. The answer given is only a general response based upon the facts provided and should not be considered specific advice for your case. Always contact a lawyer for advice about your particular circumstances and issues.


  3. You've gotten two good answers. As noted a party can sue fgor almost anything, and a court may award attorneys fees in such cases. Whether they do is based on far more than what you posted.

    - Glen Ashman - geaatl@msn.com - .................. In answering you, I am attempting to communicate general legal information and am not representing you. Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in this email is tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein.

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