California Family Code 6344

California Family Code 6344

Family Code section 6344 is part of the Domestic Violence Prevention Act. It authorizes an award of attorney’s fees and costs to the prevailing party in a proceeding concerning a domestic violence restraining order. California Family Code section 6344 does not afford payment in advance in order to be able to hire a lawyer and file the action or when defending oneself from allegations of domestic abuse. However, Family Code 6344 allows courts to order a reimbursement for attorney’s fees and costs a party incurred in seeking or defending domestic violence restraining orders.

Family Code 6344 changed effective January 1, 2023.

Effective January 1, 2023, the legislature added a new version of Family Code section 6344 making it easier for victims of domestic violence (or those falsely accused) to get reimbursed for their attorney fees and costs after the restraining order hearing. (§ 6344, as amended by Stats. 2022, ch. 591, § 1.)

The revised section 6344 provides as follows:

• “After notice and a hearing, a court, upon request, shall issue an order for the payment of attorney’s fees and costs for a prevailing petitioner.
• “(b) After notice and a hearing, the court, upon request, may issue an order for the payment of attorney’s fees and costs for a prevailing respondent only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.
• “(c) Before a court awards attorney’s fees and costs pursuant to this section, the court shall first determine pursuant to Section 270 that the party ordered to pay has, or is reasonably likely to have, the ability to pay.” (Italics added.)

By its express terms, the new law now requires a trial court to award attorney’s fees to a prevailing petitioner, regardless of that parties ability to pay their own fees. However, prior to making an award of attorney’s fees, the trial court must consider whether the party ordered to pay attorney’s fees “has, or is reasonably likely to have, the ability to pay.” (§ 6344, as amended by Stats. 2022, ch. 591, § 2.)

Finally, revised Family Code 6344 permits a family court to award attorney’s fees to a prevailing respondent (the person accused of abuse), if the request for the restraining order was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay. So, if you are the prevailing Respondent and you demonstrate “by a preponderance of the evidence” that the other party made false allegations, misused the domestic violence restraining order procedures to obtain a custody advantage, or avoid paying spousal support, or to gain exclusive use of the home, the court may issue you attorney fees and costs.