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Family Law Update

November 17, 2014

Pennsylvania Superior Court Declines To Award Counsel Fees In Custody Case

by Anthony Hoover

On September 2, 2014, in  Chen v. Saidi, the Pennsylvania Superior Court reviewed a trial court’s order relating to a nine year history of legal disputes between a mother and a father. The trial court awarded $5,000 in attorney’s fees to mother, and father appealed.

The trial court reasoned that mother was entitled to these $5,000 in legal fees, because father filed seven petitions to modify custody in a seven year span. The Superior Court disagreed.

In denying mother’s request for counsel fees, the Superior Court  cited the 2010 Custody Act, which permitted a court to award attorney’s fees if a parent engaged in behavior that was “obdurate, vexatious, repetitive, or in bad faith.”

The Superior Court held that the trial court improperly awarded attorneys fees for two reasons. First, the Superior Court relied on the intent of the legislature, which stated that the purpose of the attorney fee statute was to “award counsel fees…to deter repetitive filings that may affect the best interest of a child and required that the child constantly be placed in the middle of continued custody litigation.”  At the trial court level, mother failed to provide any evidence of how the father’s seven petitions negatively affected the wellbeing of the child.

Second, the Superior Court found that the seven petitions filed by father were not “repetitive.” Each petition involved a range of different issues and a few of the petitions  were granted by the court, including modification of school holidays, the summer break schedule,  the school year schedule, as well as increasing father’s weeks of vacation, and permitting father to travel internationally with the child.

The issues above showed that if a parent is seeking reimbursement of attorney’s fees in a custody dispute, a parent is required to show more than a record of multiple filings. As guided by this Superior Court case, a parent should show the “duplicative” nature of the filings, and show the negative impact on the child.

© 2014 McNees Wallace & Nurick LLC

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