The Hague Convention directs trial courts to award reasonable attorney fees and costs, in addition to travel and incidental costs, for a child who is wrongfully removed or wrongfully retained from the other parent and the child's home country. The pertinent statute, 22 USC 9007, provides:
§ 9007. Costs and fees
(a) Administrative costs. No department, agency, or instrumentality of the Federal Government or of any State or local government may impose on an applicant any fee in relation to the administrative processing of applications submitted under the Convention.
(b) Costs incurred in civil actions.
(1) Petitioners may be required to bear the costs of legal counsel or advisors, court costs incurred in connection with their petitions, and travel costs for the return of the child involved and any accompanying persons, except as provided in paragraphs (2) and (3).
(2) Subject to paragraph (3), legal fees or court costs incurred in connection with an action brought under section 4 [22 USCS § 9003] shall be borne by the petitioner unless they are covered by payments from Federal, State, or local legal assistance or other programs.
(3) Any court ordering the return of a child pursuant to an action brought under section 4 [22 USCS § 9003] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.
This is a high burden, and, generally, attorney fees and costs are granted. Freier v Freier, 985 F Supp 710 (ED Mich 1997).
For example, attorney fees and costs were awarded in the following circumstances:
Blanc v Morgan, 721 F Supp 2d 749 (WD Tenn 2010): mother ordered to pay attorney fees and costs in the amount of $16,944.44 after father successfully obtained order for return of their daughter to France so that France could adjudicate the issue of child custody.
Antunez-Fernandes v Connors-Fernandes, 259 F Supp 2d 800 (ND Iowa 2003): mother ordered to pay father’s attorney fees, travel expenses, translator costs and court costs incurred in seeking return of their two minor children to France after the mother wrongfully retained them in the United States.
Freier v Freier, 985 F Supp 710 (ED Mich 1997): awarded fees and costs included those related to having to secure return of child after trial court initially awarded return of child to Israel.
Lebieddzinski v Crane, 2005 WL 906368 (D Alaska 2005): awardable fees and costs include clerical and paralegal work (though there is very little billing from non-attorneys in this case, and we opted for a stream-lined approach).
A parent’s alleged “good faith” belief that there is no Hague Convention violation does not render an award reimbursing attorney fees and costs clearly inappropriate. Neves v Neves, 637 F Supp 2d 922 (ND Ind 2003).
When there are significant travel costs, attorney fees and costs (not that we concede they are significant in this case), the trial court should consider the father’s good faith efforts to reduce them when deciding how much to award. Doudle v Gause, 637 F Supp 2d 322 (WD NC 2009).
Court rule MCR 3.206(C) also supports this award. A party to a domestic relations action may receive an order thatthe other pay all or a portion of the attorney fees and expenses related to the action, whether entire proceedings, specific proceedings or post-judgment proceedings. Kurz v Kurz,, 178 Mich App 284; 443 NW2d 782 (1989).
The family court may award them “when necessary to preserve the party’s ability to carry on or defend the action,” upon motion, or when the party presents a frivolous claim or defense, upon motion or sua sponte. Id.; See also Spooner v Spooner, 15 Mich App 108; 580 NW2d 346 (1985).
The party seeking contribution must allege facts sufficient to show either that the party is unable to bear the expense of the action, and the other is able to pay, or that the attorney fees were incurred because the other party refused to comply with a previous court order, despite having the ability to comply. MCR 3.206(C)(2).
The party seeking an award of attorney fees must also allege “facts sufficient to justify the award,” including that the fees and expenses are incurred or will be and thatthe fees and expenses are reasonable. Borowsky v Borowsky, 273 Mich App 666; 733 NW2d 71 (2007). The family court must consider:
(1) the attorney’s experience;
(2) the skill, time and labor involved;
(3) the amount in issue and the ultimate result;
(4) the difficulty of the case;
(5) expenses; and
(6) the attorney-client relationship.
Crawley v Schick, 48 Mich App 728; 211 NW2d 217 (1973). Reasonable attorney fees and costs the family court can assess against both the party and that party’s attorney, or either.