Custody Modification

[mellie]

Dear Socrateaser,

I am the CP of a 14 month old girl.  NCP and I were never married and have not been together since very early in my pregnancy.  NCP's paternity has been established.

Approximately 7 months ago, NCP and I agreed to a parenting plan after attending court ordered mediation.  The plan was entered as a court order in Pennsylvania where all parties reside.

The court order, which I believe provides more than typical visitation between my daughter and NCP, has been complied with by both parties.  

NCP has become increasingly hostile towards me over the course of the last several months (I believe that he thinks that the court-determined child support he has to pay is too much and is impacting his lifestyle).  NCP is now seeking to modify the parenting plan to provide for significantly more parenting time for him (including many more overnights), which I object to.  At the time of the plan last summer, I agreed to more parenting time than I was initially inclined to because I envisioned the plan remaining in effect for some time and did not want to have to deal with courts and attorneys and mediators for a long while.

Questions:

1)  Is it likely that the courts would modify a parenting plan so soon after it was entered into, particularly when there have been no changes in circumstances of the parties?

2)  In the event that the court rejects the request for modification, is it likely/possible that NCP could be ordered to pay my legal fees?  He is represented by a relative so his legal manuevers (of which there were plenty in the first several months of my daughter's life) are far less expensive for him than they are for me.  I'm afraid if he doesn't have the threat of paying my legal fees as well as his own (if he is even charged by his attorney), I'm going to be regulary hauled back into court over the course of the next 17 years.

Thank you in advance for considering my questions.

[socrateaser]

>Questions:
>
>1)  Is it likely that the courts would modify a parenting plan
>so soon after it was entered into, particularly when there
>have been no changes in circumstances of the parties?

The issue is whether or not there has been a change in circumstances affecting the child, not the parties. If something substantial has changed in the child's live, then the court must consider it. Otherwise, you'll be sent back to mediation and if you can't work it out, then you'll have a hearing, and based on your facts, the judge will deny any change, because you haven't shown any change of circumstances that affect the child's best interests.

>
>2)  In the event that the court rejects the request for
>modification, is it likely/possible that NCP could be ordered
>to pay my legal fees?  He is represented by a relative so his
>legal manuevers (of which there were plenty in the first
>several months of my daughter's life) are far less expensive
>for him than they are for me.  I'm afraid if he doesn't have
>the threat of paying my legal fees as well as his own (if he
>is even charged by his attorney), I'm going to be regulary
>hauled back into court over the course of the next 17 years.

This is a question of PA law that I can't answer definitively. Equitable attorney fees are awarded based on one party's need balance against the other party's ability to pay. If the other party is represented for free, then that relieves him of the cost of legal representation, and potentially some amount of money that would otherwise be unavailable to help with your fees. This is an argument favoring his ability to pay.

You obviously have a need, assuming that you can show that you don't have the ability to pay your own fees.

His argument would be that you are free to obtain counsel from the legal aid society, and/or that you have money to retain counsel but that you choose not to do so. And, his attorney would argue that "but for" the free representation, his client would also not have the ability to pay, so if he can't pay for his own attorney fees, then how can he be held to pay for yours?

That would be the ivory tower argument. In the real court, the judge would probably just say, "It's equitable that both parents contribute to the legal fees for the benefit of their minor child, which is not really the correct legal standard, but the trial court judge has almost unfettered discretion in the area of attorney fees, and he/she knows you can't afford to appeal the judgment, so he/she can do pretty much whatever he/she wants.

Having said this, the fact is that you will absolutely not be awarded attorney fees in ADVANCE. You'll have to come out of your pocket and then seek reimbursment at the conclusion of the case. So, if you can't convince your opponent to stipulate to pay a fair share in advance, then you'll have to use your own assets, or borrow the funds until the case is over.

[mellie]

Dear Socrateaser,

Thank you for your quick and thorough response.  

I don't think that I'd ever be able to demonstrate an inability to pay legal fees (or qualify for legal aid) because, fortunately, my circumstances are not that dire.  I just hate the thought of using all of my disposable income (which would otherwise be available to spend on/saved for my daughter) to fight legal battles with the NCP for the next 17 years.  I thought that if there was a real possibility that he would have to pay my fees, he'd think twice about abusing the judicial system.  He is a very litigious and bitter man and I know that regardless of the outcome of this case (and the next one, and the one after that), he will always have another grievance to air.

Thanks again,

Mellie.

[socrateaser]

If you can prove to the court that the action is motivated to abuse you rather than to aid the child's welfare, then you can have him sanctioned by the court as a vexatious litigant, or sue him for abuse of process/wrongful institution of civil action.

That generally means you need to show a legal actaion against you that is resolved in your favor, usually by the court determining that it was raised frivolously -- without any meritorious issues or good faith arguments.

This would also get his attorney in trouble for violating the code of professional responsibility that prohibits attorneys from filing frivolous cases.

I don't know if you can prove this or not. At this point I think your case isn't real strong, but it may get better over time.