Emotion can cost in custody cases – Dismont
Parents caught up in “highly emotional” custody cases need to keep in mind the potentially huge costs of pursuing legal action, according to Family Centre's Martha Dismont.
Ms Dismont, speaking after a Supreme Court judge ordered a father to pay a $129,000 legal bill in full to his former lawyers, said it was common for people to act in such situations with the mindset of wanting custody of their child “at any cost”.
But she said in today's tough economic climate, it was vital to pay attention to mounting legal fees and consider whether such costs were affordable.
“People do get caught up in these cases and say ‘I don't care what the cost is; I want my child'. It's all emotion and that does tend to put people in vulnerable positions. It's important for people to pay attention to anything that might put them in a more vulnerable state, such as not having enough finances to pay for what you are trying to do.
“You have got to step back and still hold the wisdom of how to do it. You can't judge somebody in these situations. But what we should question is this another thing that's causing families to be in more financial trouble, as a result of the emotion that's wrapped up in this kind of situation.
“What can be done to ensure parents are not put in a more vulnerable state? How do people stay out of that? We need constructive systems in place [to help people deal with this].” In the case reported in yesterday's edition of The Royal Gazette, the father racked up his bill with Marshall Diel & Myers law firm in a bid to get custody of his son between 2009 and 2011.
He paid $65,600 of the total bill but $63,893 remained outstanding. The firm filed a civil suit to recoup the money and Puisne Judge Stephen Hellman ruled in its favour earlier this month, ordering that he must pay.
The judgment revealed that court social worker Elaine Charles suggested to the man and the child's mother that the matter be handled in the Family Court, with them representing themselves.
The defendant discussed the option with his lawyer Adam Richards, who advised him it was better to remain in the Supreme Court. “The defendant followed that advice,” wrote Mr Justice Hellman.
He said it would have been good practice for Mr Richards to advise his client that the Family Court was less expensive — though the judge added that the cost advantages of using the lower court should not be exaggerated — but if he didn't give the advice it “did not amount to a breach of contract” and the man was still under a contractual duty to pay his legal fees.
A lawyer who regularly acts in family proceedings told this newspaper that it was not uncommon in Bermuda for a parent involved in family proceedings to end up with a bill of that size.
“It's not an unusual sum,” said the attorney, adding that some matters relating to child custody, such as applying to have a minor returned to the island from overseas, had to be dealt with in Supreme Court.
“These sorts of things really add up. Often we encourage parties to work it out between themselves. With our firm, we also bill clients frequently.”
The lawyer, who asked not to be named, said a limit of $10,000 was often set by clients so they could reassess at that point whether they were in a position to continue being represented. The lawyer pointed out that litigants involved in custody cases could apply for legal aid.
The father in this case signed a contract with Marshall Diel & Myers which said bills would usually be monthly and he had to query any items within 30 days of receipt or accept that the bill was “accurate, due and owing”.
The judge said his failure to raise concerns about the fees within the 30-day timeframe, as agreed, meant he was liable to pay the whole amount.