Attorney Fees Possibly Recouped from Spouse if Disparity in Income

Attorney fees may be ordered from one spouse to the other, based on a disparity in income between the two litigating spouses. The court may find it necessary to allow a party to have the same access to legal representation as the wealthier spouse, upon a request for order by one spouse.

As required under Family Code 2030(a)(2), “When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.”

Arguments can often times be made by both sides as to why it would be appropriate or inappropriate to award attorney's fees to the requesting party. Ultimately, the court can decide whether the award will be granted and the amount.

Sanctions if Uncooperative Conduct Arises

A court may base an attorney fees and costs award based “on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to provide settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Fam C §271(a).

A trial court must be able to apply sanctions during course of litigation when uncooperative conduct arises, to encourage better behavior as litigation progresses. Marriage of Feldman (2007) 153 CA4th 1470, 1495.

Because of the nature of sanctions, the requesting party is not required to demonstrate any financial need for the award. Fam C §271(a); Marriage of Falcone & Fyke (2012) 203 CA4th 964, 990.

Grandparent Visitation Rights

A court has authority to grant "reasonable visitation" to grandparents if the natural parents have separated. A grandparent must show there is a preexisting relationship between the grandparent & grandchild that has created such a bond that visitation is in the best interest of the child. 

There is also a presumption that no contact is in the child's best interest if both legal parents agree that the grandparent should not be granted visitation rights. 

Additionally, if a natural parent is deceased, reasonable visitation my be given to the grandparents and siblings of the deceased parent. 

Typically, a child custody judgment rendered between the natural parents will control grandparent contact.

Biological Father Does Not Have Constitutional Right to Establish Paternity of Child Born to Wife of Another Man in Michael H. Case

Believe it or not, the biological father of the child does not have the constitutional right to establish paternity of a child born to the wife of another man. Dawn D. v Superior Court (1998) 17 C4th 932, 944. 

The husband of a woman who conceives as a result of an extramarital affair is presumed to be the child’s legal father. Rodney F. v Karen M. (1998) 61 CA4th 233, 239. Lisa I. v Superior Court (Phillip V.) (2005) 133 CA4th 605, 622.

Both the California Supreme Court and the United States Supreme Court have rejected due process challenges to the presumption under the law, that a child born during marriage is the presumed child of the husband. Michael H. v Gerald D. (1989) 491 US 110, 109 S Ct 2333; Michelle W. v Ronald W. (1985) 39 C3d 354. 

Additionally, equal protection challenges have been unsuccessful in the California Supreme Court. The court held the state has a legitimate interest in preferring a man who has undertaken the responsibilities of marriage and family, over a man who has merely biological ties to a child. Michelle W. v Ronald W. (1985) 39 C3d 354, 363; Rodney F. v Karen M. (1998) 61 CA4th 233, 239.

However, a biological father may have some rights if a married couple allows a parental relationship to develop between the child and biological father. Dawn D. v Superior Court (1998) 17 C4th 932, 944. Thus, there may be certain policy and logic arguments which may be used to argue paternity.

Michael H. left open the possibility that the presumption of paternity to the husband of a child born during marriage might be unconstitutional if applied to substantially different facts. Therefore, it still within the realm of possibility to establish parental rights.

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