Attorney’s Fees in Dependency and Neglect Cases
It is very common in almost all types of family law cases for attorney’s fees to be requested and sought after. T.C.A. § 36-5-103. T.C.A. § 36-5-103 states that the prevailing party may recover reasonable attorney’s fees in the following legal actions:
In any criminal or civil contempt action or other proceeding to enforce, alter, change, or modify any decree of alimony, child support, or provision of a permanent parenting plan order, or in any suit or action concerning the adjudication of the custody or change of custody of any children, both upon the original divorce hearing and at any subsequent hearing.
The Court of Appeals of Tennessee held that a prevailing party can recover attorney’s fees from the non-prevailing party in a dependency and neglect action in Shofner v. Shofner, 232 S.W.3d (Ct. App. Tenn. 2007).
In Schofner, the mother sought an emergency hearing in the juvenile court and an order for immediate removal of the two children in the father’s custody. An emergency hearing was conducted on the same day her petition was filed, and the court denied her relief. The Juvenile Court Referee found that many of the mother’s allegations overlapped with allegations made in the pending divorce litigation, and the remaining allegations did not constitute grounds for a finding of dependency and neglect.
The mother subsequently appealed the dismissal of her petition for dependency and neglect, and the Juvenile Court Judge affirmed the ruling and awarded attorney’s fees to the father. The mother filed a motion to vacate the award of attorney’s fees, arguing that the court did not have authority to award attorney's fees in dependency and neglect cases, and the Juvenile Court Judge agreed and vacated the award. The father subsequently appealed this decision.
The Shofner court reiterated the finding in Stroud v. Stroud, 1995 WL 498946 (Tenn. Ct. App. 1995), where the Stroud court stated “in order for a court to award attorney's fees, there must first be either a contractual agreement or a statutory rights. Otherwise, each party to a lawsuit ordinarily bears the expense of his own attorney’s fees. Stroud, at *2 (citing State ex rel. Orr v. Thomas, 585, S.W. 2d 606, 607 (Tenn. 1979).
The Shofner court found that mother challenged the circuit court’s temporary custody order in their divorce litigation by filing her dependency and neglect action in the juvenile court. By defending the dependency and neglect action in the juvenile court, the father was able to enforce the circuit court's custody order. Therefore, mother’s actions put the father under the purview of T.C.A. § 36-5-103(c) for “enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or change of custody of any child. . .” The Shofner court held that father was entitled to attorney’s fees for defending against mother’s dependency and neglect action in the juvenile court, and considers the defense of dependency and neglect actions to be advocating for the enforcement of a current custody order or decree.
