Legal Actions for Exclusive Custody

Division 8, Part 2, Chapter 7 of the Family Code deals with actions for exclusive custody of a minor child.

Section 3120 explains that, without filing a petition for dissolution of marriage or legal separation of the parties, a spouse may bring an action for the exclusive custody of the children of the marriage. The court may, during the pendency of the action, or at the final hearing, or afterwards, make an order regarding the support, care, custody, education, and control of the children of the marriage as may be just and in accordance with the natural rights of the parents and the best interest of the children. The order may be modified or terminated at any time.

Section 3121 provides that, in certain proceedings subsequent to entry of a related judgment, the court is required to ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a government entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.

When a request for attorney’s fees and costs is made, the court is required to make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.

The court is also required to augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution or defense of a proceeding, including after any appeal has been concluded.

A court must rule on an application for fees under this section within 15 days of the hearing on the motion or order to show cause. An order may be made without notice by an oral motion in open court at either of two specified times.