Marriage of Cross and Melim CA6

I. BACKGROUND

Appellant and respondent had two children during their seven-year marriage. The couple separated in 2005, and in 2007 appellant was arrested and charged in Santa Clara County with embezzlement and grand theft. Appellant served time in prison and was released on parole in November 2009. Although respondent had sole legal and physical custody of the children during appellant’s incarceration, the parties informally agreed to share physical custody after appellant was released, with appellant having the girls about 40 percent of the time. On July 23, 2012, appellant filed a request for joint legal and joint physical child custody and child support because she felt that respondent was unfairly setting the terms of the informal custody arrangement, using the girls and her fear of losing them as leverage. She also sought attorney’s fees and costs under Family Code section 20301 based on income disparity and respondent’s ability to pay for her legal representation. The parties attended Child Custody Recommending Counseling and, on October 12, 2012, the court adopted the counseling recommendations which included joint legal custody and continued shared physical custody. The…