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  • Jashauna Adams

Exploring Family Code Section 6344: Attorney's Fees in Domestic Violence Restraining Orders



Introduction


In cases involving domestic violence restraining orders, California's Family Code Section 6344 plays a crucial role in ensuring fair access to legal representation.


Family Code Section 6344 outlines the conditions under which a court may award attorney's fees and costs to prevailing parties in domestic violence restraining order cases. Let's explore the key elements of this provision:


(a) Payment of Attorney's Fees and Costs for a Prevailing Petitioner


Section 6344(a) states that after notice and a hearing, the court is required to issue an order for the payment of attorney's fees and costs for a prevailing petitioner. This provision acknowledges the importance of providing financial support to the victim who successfully obtains the restraining order, ensuring they have access to legal representation and justice.


(b) Payment of Attorney's Fees and Costs for a Prevailing Respondent


Section 6344(b) specifies that after notice and a hearing, the court may, upon request, issue an order for the payment of attorney's fees and costs for a prevailing respondent. However, the respondent must establish by a preponderance of the evidence that the petition or request is frivolous, intended to abuse, intimidate, or cause unnecessary delay. This provision protects individuals from facing undue financial burdens when false or unnecessary restraining order petitions are filed against them.


(c) Determining Ability to Pay


Before awarding attorney's fees and costs under Section 6344, the court must first determine, pursuant to Section 270, that the party ordered to pay has, or is reasonably likely to have, the ability to pay. This ensures that the financial responsibility is placed on individuals who are capable of bearing it, preventing unfair consequences for parties with genuine financial hardships.

Importance of a Fair and Just Legal Process

  1. Access to Legal Representation: Awarding attorney's fees and costs to prevailing parties, as mandated by Section 6344, promotes equal access to legal representation. It helps level the playing field by ensuring that victims of domestic violence can afford skilled attorneys who can effectively present their case.

  2. Deterrence of Frivolous Claims: Section 6344(b) discourages the filing of frivolous or malicious restraining orders by requiring the respondent to establish the petitioner's intentions. This provision protects individuals from undue financial burdens caused by unfounded allegations, maintaining the integrity of the legal process.

  3. Financial Considerations: By assessing the ability to pay before awarding attorney's fees and costs, Section 6344(c) ensures that the responsibility falls on parties who have the means to pay. This consideration prevents unnecessary financial hardship and maintains fairness in the court's decision-making process.

Conclusion


Family Code Section 6344 is a crucial provision that promotes fairness and access to justice in domestic violence restraining order cases. By awarding attorney's fees and costs to prevailing parties, the court ensures that victims of domestic violence can afford competent legal representation. Simultaneously, the provision safeguards against the abuse of the legal system by requiring respondents to establish the frivolous nature of the petitioner's claims. By considering the ability to pay, the court maintains a fair and balanced approach to financial responsibilities. Overall, Section 6344 seeks to create an equitable and just legal process in domestic violence restraining order cases.

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