Article by Daniel A. Levy, Esq.
When two parents break up, it is not uncommon for one of them to file a Complaint with the court and establish a custody and visitation order. Most of the time, the parents can agree with there child will live for the majority of the time. But when they cannot agree, there may be a lengthy and contention legal proceeding involving lawyers. And parents in that situation will want to know how much does it cost to fight for custody.
First, I want to point out that this article is not about divorce cases, but rather non-dissolution matters (i.e. when the parents were never married). Unlike divorce, one of the parents is allowed to file a complaint that just addresses the issue of custody and visitation. Second, I want to point out that there are two different kinds of custody in New Jersey: Legal custody and residential custody. Legal custody basically means that the parent has the right and ability to share in major decisions and has access to certain records. In almost all cases, legal custody is shared between both parents. Residential custody mean that the child sleeps at that parent’s house at least 50% of the nights of the year. Residential custody is rarely shared 50/50. Much more common is a situation where the child resides with one parent the majority of the time (called, the parent of primary residence) and the other parent will be awarded parenting time (previously known as “visitation”).
Sometimes, the parent who does not have residential custody files an application to change custody. And sometimes – typically with very young children – there is no custody order and both parents want primary residential custody. In either case, we strongly recommend hiring an attorney because the Court will have to decide what is in the best interest of the child, based on many factors from the applicable statute.
And this leads to the important question: How much is that going to cost? Certainly, each case is going to be different and whichever attorney you hire will likely base the cost on the amount of work that the case requires. But clients should understand that many of these cases are complicated and will require several court appearances. The attorneys may attempt to resolve the issue through negotiation, which may or may not be successful. If there is no negotiated resolution, then the case could go to a trial.
That is where there are often misunderstandings with the fee. Sometimes, an attorney will quote a flat fee and begin representing the client in the case. And later, the attorney will discuss a negotiated resolution that does not result in the client gaining custody. The attorney may even strongly recommend the deal, knowing that there will be many hours of work ahead of them if the client rejects it and goes to trial. That is why a client should be careful to discuss the fees with the attorney at the outset, especially if a low, flat-fee is quoted for the entire representation. If, for example, an attorney quotes a client $1,500 for a representation that may take 20 hours to complete, the attorney and client may not be on the same page. That is because the market rate for a 20-hour representation is closer to $7,000.
Personally, I feel very strongly about being extremely clear with my clients about fees for custody disputes. I typically do quote a low, flat-fee to my clients when they first hire me, but I am very clear with them that the initial flat-fee will only cover the first couple of court appearances and custody negotiations. And the amount that I quote is on a case-by-case basis, based on the projected amount of time to be spent. I also explain that an additional fee will be required if the case is going to go to a trial and if experts are involved. That way, if I only spend a few hours on the case, the client has not spent money as if I spent 15-20 hours and had a trial. Likewise, the client understands that if they do want to move forward and have a trial, we will be very happy to put in the time and effort for them, but they will be responsible to pay us for our time. Attorney fees often play a role in a client’s decision to resolve a matter or continue fighting, and therefore, the client must be completely aware of the amount of attorney fees involved in the representation.