Case Update: Attorney Fees and Costs in 1980 Convention Cases
Over the past few months, there have been several cases that have addressed the issue of legal fees and costs to be paid by a Taking Parent as part of a successful return order under the Hague Abduction Convention.
The International Child Abduction Remedies Act includes a fee-shifting provision that provides that the court ordering the return of a child shall order the Respondent to pay necessary expenses incurred on behalf of the Petitioner unless the Respondent establishes that such an order would be clearly inappropriate.
The U.S. District Court for the Eastern District of Louisiana, in Joya v. Gonzalez, used the “lodestar” calculation as its starting point to award fees to a Left Behind Parent, by determining the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate in the local market. The court, in this case, focused very heavily on the Petitioner Parent's documentation when it granted Mr. Joya the fees and costs he requested. See the Blog's prior post on this issue in Joya v. Gonzalez.
The U.S. District Court for the Eastern District of New York, in Wtulich v. Filipkowska, sought to restore the left-behind parent to “the financial position he would have occupied but for [the taking parent’s] wrongful retention of their [child].” It also acknowledged that the fee provision in ICARA is intended to be a deterrent to abducting the child in the first place. The court examined whether a fee award would be “clearly inappropriate” and determined that the Taking Parent’s argument that the father was in a better financial position than her unpersuasive to deny the fee award. Using the “lodestar” method, the judge used his discretion to lower the hourly rates charged by the Left Behind Parent’s legal counsel. The judge further looked at the legal bills to determine if they were specific and detailed, and did not charge for excessive, redundant, or unnecessary fees. The LBP’s lawyers used “block billing entries,” but provided sufficient detail to allow the judge to determine that the hours were reasonable. When reviewing the costs, however, the judge found some were likely duplicative of legal fees, some invoices were entirely in Polish and indecipherable to the judge, and some of the costs provided no actual receipt to verify it. The judge relied heavily on the documentation to decide which costs were reimbursable.
In a third recent case, the U.S. District Court for the District of South Carolina-Charleston Division, in Cocom v. Timofeev, focused on two situations when it may be “clearly inappropriate” to grant fees and costs: “whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child … [and] whether a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified.” In this case, the court found it clearly inappropriate to order payment from the abducting Father who, at times, had been living in a homeless shelter or his truck and the Grandmother, who had no income and was living off her $6,000 savings. Further, the amount of fees requested was over 1.5 times the Father’s income. Even though the court had the discretion to reduce any fee award, it chose instead to deny the Left Behind Parent’s request for fees entirely.