Loser Pays Legal Fees In Family Court?

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FUAN-Family Court... Should the Loser Pay_
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This article is a guest submission by Tom McDermott.

Tom McDermott is a full-time advocate for equal parenting rights. He works diligently in that role except on days when he has his children. On those days, he devotes every minute to them being keenly aware of the limited time. 

Tom is from Clinton, Iowa. He joined the Army right out of high school, and eventually retired from the National Guard after twenty years of service. During this time, he was also in law enforcement (fourteen years), resigning in 2016 for personal reasons. 

This year, a new and interesting bill, HF2188, was introduced by Representative McKean in the Iowa legislature. It is a bill that deals with legal fees. Currently, according to the law, courts can order the party that loses a case to pay the legal fees of the winner. 

The bill is an excellent idea in criminal cases or cases where someone can prove that the other party is dragging them to court over and over to waste money and harass them. However, this bill deals with child custody cases. 

Let me give a scenario, and bear with me while I set up all the details involved in these cases. 

Current laws for child custody cases generally give primary care to one parent and “visitation” to the other parent. The most common visitation arrangement is every other weekend, and one evening a week. This arrangement prevails despite numerous studies showing that this is not in the best interest of the child. 

Knowing this, wouldn't you want to go back to court to modify the custody order if you, like so many others, were in this situation? Your time with your children minimized to this level. 

Instead, the courts are saying, “We made our decision. We are going to double your already outrageous legal fees by making you responsible for the other party's legal fees.” This to ensure that you cannot appeal, or return to court again to ask for a modification, 

Recently, I attended a subcommittee hearing for a bill dealing with terminating a parent's rights and charging the legal fees to the “terminated” parent. One of the senators in attendance, Senator Hogg (d), Linn County, gave a brilliant reason for not doing this, and the bill died in large part because of this. He reasons that the state is already taking away a fundamental right from a parent. We shouldn't be punishing them again by forcing paying the legal fees for the process that took away their kids.

First off, he acknowledges that parent's rights are fundamental; and second, he understands this as a “punishment.” Currently, courts say in their orders that nothing in child custody orders should be seen as “punishment.” Everything they do is in the “children's best interest.” 

However, everyone involved knows this is a game of trying to get maximum money for the client. What better way to do this than by having a mechanism in place to tap more money from the parent whom the court deems “the loser.” 

I would also like to point out; these are not generally cases where one parent is a millionaire, and the other is destitute. These are everyday cases involving middle class or even low-income families making well under a hundred thousand dollars. 

When families are breaking up, everyone involved is in crisis. 

Adding additional burden to one parent for no reason other than they lost their case is unjust and punitive. This burden comes at a time of dramatic crisis because of losing time with their kids. It does nothing except add more stress and anxiety to the situation. I would even argue that it even adds to the fight that separating parents are already having. Instead of finding workable solutions, each side is “all in” trying to “win.” 

Mature adults strive to create a good future for their children. Parents and their lawyers, from the decree onward, should understand the need for cooperation instead of being adversaries in court. Only then can their actions be beneficial to their children. 

Removing this penalty is a good beginning. 


[DISCLAIMER: The opinions expressed in guest posts, are the personal opinions of the author. They may or may not reflect the views of Families United Action Network (FUAN) or its individual members. Note that submissions may have been edited for clarity.