Attorney's Fees in California Domestic Violence Cases: What Family Code Section 6344 Provides
Quick Answer: California Family Code § 6344 gives courts the authority to order one party to pay the other's attorney's fees and costs in a domestic violence restraining order proceeding. The provision is most commonly used to require an abuser to pay for the survivor's legal representation, reducing the financial barrier to obtaining protection. The award is discretionary, meaning the judge weighs the financial circumstances of both parties and the specific facts of the case before deciding whether to grant it.
If you need help obtaining a domestic violence restraining order or have questions about attorney's fees, contact The Geller Firm at (415) 840-0570 for a confidential consultation.
What Is Family Code Section 6344?
Family Code § 6344 is part of California's Domestic Violence Prevention Act (DVPA), the comprehensive statutory framework that governs the issuance of domestic violence restraining orders and related protective measures. The statute addresses the awarding of attorney's fees and costs as part of a restraining order proceeding, recognizing that the cost of legal representation can itself be a barrier to safety for domestic violence survivors.
The provision reflects a straightforward policy judgment: domestic violence survivors should not be denied effective legal representation simply because they have fewer financial resources than their abuser. By allowing courts to shift legal costs to the restrained party, § 6344 helps level the playing field in proceedings that often determine a survivor's immediate physical safety.
Why Does California Allow Attorney's Fees in Domestic Violence Cases?
Domestic violence situations frequently involve significant financial imbalance between the parties. Economic abuse is itself a recognized form of domestic violence, and many survivors find themselves with limited independent financial resources precisely because their abuser controlled or restricted their access to money during the relationship.
In this context, the inability to afford an attorney is not simply an inconvenience. It can mean the difference between obtaining a protective order and being left without legal recourse. An unrepresented survivor may struggle to complete the required forms, present their evidence effectively, respond to the restrained party's arguments, or enforce the order once it is granted.
Section 6344 addresses this structural problem by making legal fees a cost that can be imposed on the abuser rather than borne entirely by the survivor. This serves several purposes simultaneously:
Ensuring access to representation. A survivor who knows that legal fees may be recoverable is better positioned to retain an attorney from the outset of the proceeding rather than attempting to navigate the process alone.
Promoting fairness. Where one party has significantly greater financial resources, shifting fees helps neutralize the advantage that money alone can create in litigation.
Deterring non-compliance. The prospect of bearing both parties' legal costs provides an additional financial incentive for the restrained party to comply with court orders rather than continuing conduct that forces the survivor back into court.
How Does the Court Decide Whether to Award Attorney's Fees Under Section 6344?
The award of attorney's fees under § 6344 is discretionary. The court is not required to award fees in every domestic violence case. Instead, the judge evaluates the specific circumstances and determines whether an award is appropriate and in what amount.
Factors the court considers include:
The financial resources of each party. The court examines each party's income, assets, and overall financial situation. A significant disparity in resources strengthens the case for a fee award. When both parties have similar resources, the court's analysis shifts toward other factors.
The necessity of legal representation for the survivor's safety. In cases involving serious or ongoing violence, complex custody issues, or a restrained party who is represented by counsel, the court is more likely to find that legal representation was necessary to the survivor's ability to obtain adequate protection.
The outcome of the proceeding. Section 6344 authorizes fees to the prevailing party. A survivor who successfully obtains a restraining order is the prevailing party for purposes of a fee request. However, courts have discretion to award fees even in cases where the outcome is mixed or where the restrained party successfully defeats the order in some respects.
The conduct of the parties. Conduct that unnecessarily prolonged or complicated the proceeding may be considered, particularly if one party's litigation behavior increased the other's legal costs.
Any other relevant circumstances. Courts retain broad discretion to consider any factor that bears on the fairness of a fee award in the specific case.
Who Can Receive Attorney's Fees Under Section 6344?
Section 6344 authorizes fees to the prevailing party, which means either party could technically seek fees. In practice, the provision is most frequently invoked by domestic violence survivors seeking fees from the restrained party following a successful restraining order hearing.
However, if a court finds that a domestic violence restraining order petition was brought in bad faith or without reasonable basis, it may award fees to the restrained party as well. This underscores the importance of bringing only genuine, well-founded restraining order petitions.
How Does a Survivor Request Attorney's Fees Under Section 6344?
To seek attorney's fees under § 6344, the survivor or their attorney should take the following steps:
Include the fee request in the initial application. The request for attorney's fees should be made at the outset of the proceeding, typically in the original petition for a domestic violence restraining order. Waiting until after the hearing to raise the issue may complicate or forfeit the request.
Document all legal expenses. The court requires substantiation of the fees being requested. This documentation typically includes itemized billing statements from the attorney, a breakdown of hours worked and tasks performed, and the attorney's hourly rate. Vague or unsupported fee requests are less likely to be granted in full.
Present financial information. Because the award is discretionary and based in part on each party's financial resources, the requesting party should be prepared to present information about their own financial circumstances and, where available, the other party's income and assets.
Attend the hearing prepared to address fees. Fee requests are typically addressed at the same hearing where the restraining order is considered. The attorney should be prepared to argue for the fee award and respond to any opposition from the restrained party.
How Does Section 6344 Interact With Other Fee-Shifting Provisions?
Section 6344 operates alongside other California family law provisions that authorize attorney's fees in different contexts:
Family Code § 2030 provides need-based attorney's fees in divorce and custody proceedings, where the court equalizes access to representation based on income disparity.
Family Code § 271 imposes conduct-based sanctions, including attorney's fees, against a party who frustrates settlement of a family law proceeding through obstructive behavior.
In domestic violence cases that arise in the context of a divorce or custody proceeding, multiple fee-shifting provisions may apply simultaneously. An attorney representing a domestic violence survivor in a divorce that also involves a restraining order proceeding can evaluate which provisions apply and pursue fees under each where appropriate.
Frequently Asked Questions
Does a survivor have to win the restraining order to get attorney's fees? The statute refers to the prevailing party, and a survivor who successfully obtains a restraining order is clearly the prevailing party. However, courts have some discretion in close cases. Consulting with an attorney about the strength of your case and the fee request is advisable before the hearing.
Can attorney's fees be requested after the hearing? Ideally, the fee request should be made at the outset and addressed at the hearing on the restraining order. Post-hearing fee requests are procedurally more complicated and may not be fully considered if they were not raised during the initial proceeding.
What if the restrained party cannot pay the attorney's fees? The court will consider the restrained party's ability to pay when determining the amount of any fee award. A court will not impose an award that the restrained party has no realistic ability to satisfy. However, ability to pay is one factor among several, and a fee award that is reasonable in light of the circumstances may still be entered even if payment requires time.
Does Section 6344 apply to civil harassment restraining orders? No. Section 6344 is specific to domestic violence restraining order proceedings under the DVPA. Civil harassment restraining orders are governed by Code of Civil Procedure § 527.6, which has its own fee-shifting provisions.
Can fees be requested for self-represented survivors? Self-represented parties generally cannot recover attorney's fees for their own time under § 6344, as the provision covers fees paid to an attorney for legal services. However, recoverable costs may still be available. A self-represented survivor who later retains counsel can pursue fees for the attorney's work going forward.
Speak With a California Domestic Violence Attorney
If you are a survivor of domestic violence seeking a restraining order, or if you have questions about attorney's fees in a restraining order proceeding, you do not have to navigate this alone. The Geller Firm represents clients across California in domestic violence restraining order proceedings, including fee requests under Family Code § 6344, and in related divorce and custody matters where domestic violence is a factor.
We offer confidential virtual and in-person consultations from our Walnut Creek office.
Call (415) 840-0570 or contact us online to schedule your consultation.