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Counsel fees and custody

A common question I receive: "How often can my ex drag me back to court"? The answer to this really depends on the individual facts of the case. But in custody matters, the court is especially reluctant to limit modification requests.

In 2010, Pennsylvania passed a major revision to PA custody law. Among the new provisions was 23 Pa.C.S.A. 5339 which states that "a court may award reasonable ... counsel fees...if the court finds that the conduct of another party was obdurate, vexatious, repetitive or in bad faith". The award of counsel fees must also take into account the best interests of the child.

In the case of Yuan Chen v. Saidi, 100 A.3d 587 (Pa. Super. 2014), the Superior Court analyzed (for the first time) when custody actions are "repetitive" and therefore could lead to an award of counsel fees. The Chen case dealt with a father who filed seven custody-related modification petitions within seven years. The petitions were filed on various issues, including various changes to the custody schedule and permission to travel.

The trial court ordered father to pay mother $5,000 for these "repetitive" attempts to modify the custody arrangement. The Superior Court reasoned that, because father's petitions each sought different forms of relief on typical custody issues, his behavior was not "repetitive" and therefore not subject to counsel fees. Accordingly, the trial court's award of $5,000 in counsel fees to mother was overturned.

Since the Court found that seven petitions in seven years was not "repetitive", we must assume that the Court was looking for directed evidence of bad faith, beyond the number of petitions.

Nevertheless, there are things that experienced counsel can do to limit the number of times a client is dragged back to court. These include negotiating counsel fee provisions and using the modification request as an opportunity to turn the tables and seek the opposite of what is requested. As always, talk to your attorney to determine the best course of action for your case.