What Is Litigation Abuse in Family Court?

Most people facing this question are in the middle of a San Diego County divorce, custody or support case and have started to notice a pattern. A new motion arrives just after the last one was decided. Discovery requests run to dozens of pages about things that are not in dispute. A hearing gets moved again the week it was set. The legal bills keep climbing, and the case never seems to get closer to an end. The question underneath is whether this is simply what a hard-fought case looks like, or whether the other side is using the court itself as a way to wear a person down.

This article explains what California law treats as litigation abuse, the common forms it takes, why it is hard to prove, the statutes that address it, and how the Superior Court of California, County of San Diego, handles it, including where it overlaps with domestic violence.

The conduct goes by several names, including abusive litigation and vexatious litigation, but the test is the same: purpose and effect. A filing that asks the court to decide a real, disputed question is part of the system working. A filing whose main job is to cost the other person money, time or peace is something else.

That line matters, because hard-fought advocacy is not abuse. Filing a contested motion, asking for financial records through discovery (the formal process for getting documents and testimony from the other side), taking a deposition, or taking a case to trial are all legitimate tools. When settlement is not enough to protect a person's rights, using those tools carefully and on the evidence is what assertive family law advocacy means. The difference between the two lies in whether the step has a real legal basis and a real purpose in the case.

California courts address litigation conduct mainly through three bodies of law: Family Code section 271, which allows fee awards as a sanction; Code of Civil Procedure section 128.7, which governs signed court papers; and the vexatious litigant statutes, Code of Civil Procedure sections 391 through 391.8. Code of Civil Procedure section 128.5 adds a related tool for bad-faith tactics.

Family court adds one feature that other courts rarely see. The two people in the case often share children, a history and sometimes a pattern of control. When that control was part of the relationship, the same behavior can continue after separation through the case itself: through filings, demands and hearings instead of phone calls and confrontations.

Repetition is the most recognizable sign. A party files motion after motion asking to change a custody or support order that was just decided, with no new facts. California custody and support orders can generally be modified only on a showing of changed circumstances, so serial requests on the same record tend to signal a purpose other than a real change.

Other patterns that come up in San Diego County cases include:

• Burdensome discovery. Excessive, repetitive or irrelevant requests designed to drive up costs rather than gather evidence on a disputed issue.
• False or exaggerated declarations to get emergency orders. Under Family Code section 3064(a), the court must not grant or modify a custody order on an ex parte basis (without the usual notice and full hearing) unless there is a showing of immediate harm to the child or immediate risk that the child will be removed from California. Section 3064(b) says immediate harm includes, among other things, a parent's recent or continuing acts of domestic violence and recent or continuing sexual abuse of the child, and the court must consider a parent's illegal access to firearms and ammunition. Overstated claims aimed at clearing that bar are a form of abuse. For how genuine requests work, see the overview of emergency family court orders.
• Ignoring court orders on purpose. Refusing to follow an order so the other party must keep filing enforcement motions.
• Frivolous requests for order. Filing on minor issues to multiply hearings and fees.
• Trading custody for money. Using a custody dispute as leverage in the financial case, or the reverse.
• Baseless contempt. Threatening or filing contempt motions with no real violation behind them. Contempt is a serious proceeding with its own requirements; the article on contempt in family court covers how it legitimately works.
• Delay. Last-minute continuance requests, stonewalling before settlement conferences, and failing to exchange required disclosures.

Disclosure deserves a specific note. Under Family Code section 2104(f), each spouse serves the preliminary declaration of disclosure (a sworn summary of assets, debts and income) with the petition or response, or within 60 days of filing it, unless the parties extend that time by written agreement or the court extends it by order. One late disclosure is common. Repeated failure to comply, especially alongside other tactics, can form part of a pattern the court weighs. The discussion of financial disputes in divorce explains how disclosure fights are resolved.

A single aggressive filing rarely proves anything. Courts separate one sharp motion from a pattern of conduct, and the pattern is what tends to support sanctions or a vexatious litigant designation.

People who feel targeted often find this the most frustrating part: each filing, on its own, can look reasonable on paper. Intent is almost never stated. A judge infers it from the cumulative record, looking at timing, frequency, the lack of evidentiary support, and the effect on the other party.

Code of Civil Procedure section 128.7 is built around that record. Every pleading, petition or motion must be signed by an attorney of record or, if the party has no attorney, by the party. By signing, filing or later advocating that paper, the signer certifies that, to the best of their knowledge, information and belief formed after an inquiry reasonable under the circumstances, the paper meets the conditions the statute sets out, which concern its purpose and its legal and factual support. A signature is therefore a promise the court can later test.

Family Code section 271 looks at conduct more broadly. Its text reads, in part:

"the court may base an award of attorney's fees and costs on the extent to which any conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys."

The work of showing the pattern falls largely on the person experiencing it. The building blocks are ordinary: sworn declarations, a log of every document filed and served with dates, the orders that resulted, and hearing transcripts. Emotional abuse and coercive control are among the hardest patterns to prove for the same reason. Each incident may look minor in isolation, and only the full sequence shows what is happening.

Family Code section 271. The court may award attorney's fees and costs based on how a party's or attorney's conduct furthers or frustrates the policy of promoting settlement and reducing litigation costs. The award is in the nature of a sanction. The court must consider all evidence of the parties' incomes, assets and liabilities, and may not impose a sanction that places an unreasonable financial burden on the party sanctioned. The party asking for the award does not have to show financial need.

Code of Civil Procedure section 128.7. This section applies to signed papers and the certification described above. When a paper fails those conditions, the court may impose sanctions, which can include attorney's fees. Before a party may file a sanctions motion under this section, the motion must be served and 21 days must pass to give the filing party a chance to withdraw or correct the challenged paper; when the court raises the issue on its own motion, it instead issues an order to show cause and allows 21 days from service of that order before sanctions can be imposed.

Code of Civil Procedure section 128.5. A trial court may order a party, the party's attorney or both to pay reasonable expenses, including attorney's fees, caused by bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. "Frivolous" means totally and completely without merit or for the sole purpose of harassing an opposing party. Expenses may be imposed only on notice in the moving or responding papers or, on the court's own motion, after notice and an opportunity to be heard, and when the challenged conduct is a written motion or pleading that can be withdrawn or corrected, the sanctions motion cannot be filed until 21 days after it is served on the other side.

Vexatious litigant statutes, Code of Civil Procedure sections 391 through 391.8. Section 391 defines a vexatious litigant through several patterns, including a person who, in the preceding seven years, has filed or maintained in propria persona (representing themselves) at least five litigations, outside small claims court, that were finally decided against them or left pending at least two years without trial or hearing. Under section 391.7, the court may enter a prefiling order barring that person from filing new litigation on their own without permission from the presiding judge. The presiding judge allows a filing only if it appears to have merit and was not filed for harassment or delay, and disobeying the order may be punished as contempt. Under section 391.8, the person may apply to vacate the order and be removed from the Judicial Council's list, and the court may vacate it on a showing of a material change in the facts on which the order was granted and that the ends of justice would be served by vacating it. After a denial, another application may not be filed until 12 months have passed. The California Courts publish the vexatious litigant list.

Code of Civil Procedure section 425.16 (anti-SLAPP). This statute allows a special motion to strike a claim arising from a person's exercise of free speech or the right to petition, unless the plaintiff shows a probability of winning. The Legislature directed that it be construed broadly. A defendant who prevails on the motion is generally entitled to recover attorney's fees and costs, while a prevailing plaintiff recovers fees only if the court finds the motion was frivolous or solely intended to cause delay. Its use within a family law case depends heavily on the specific claim.

These tools can be combined. The conduct at issue determines which one fits. Statutory text is available at leginfo.legislature.ca.gov.

All San Diego County family law matters are heard by the Superior Court of California, County of San Diego. In most cases, a request about abusive conduct is raised inside the existing case, not in a separate lawsuit. A section 271 request is commonly made in a request for order or at a hearing already set in the case where the court has the parties before it. The broader process is described in the guide to California divorce litigation.

Custody fights add a required step. Under Family Code section 3170(a), when custody, visitation or both are contested, the court must set the contested issues for mediation. In San Diego County that is child custody recommending counseling with the court's Family Court Services. Under Family Code section 3183(a), the counselor, called a child custody recommending counselor, may, consistent with local court rules, make a recommendation to the court if it is first provided in writing to the parties and their attorneys before the hearing. Family Court Services states that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides. A counseling session can also put a pattern of conduct in front of a neutral professional, which can matter where one parent is using the process against the other.

Where abuse in the case overlaps with domestic violence, Family Code section 3044 becomes central. It creates a presumption that awarding sole or joint custody to a parent is detrimental to the child's best interest when the court finds that parent perpetrated domestic violence within the previous five years against the other party, the child, the child's siblings or certain others (section 3044(a)). Under section 3044(b)(1), neither the preference for frequent and continuing contact with both parents nor the preference for contact with the noncustodial parent may be used to rebut it, in whole or in part. The presumption may be rebutted only by a preponderance of the evidence.

The court's self-help and procedural information is at sdcourt.ca.gov.

Anyone in immediate danger can call 911.

Post-separation litigation is a recognized way coercive control continues: using the court process to monitor a former partner, exhaust them financially, or force contact they do not want. For someone who left a controlling relationship, receiving yet another set of papers can feel like the relationship never really ended.

California's Domestic Violence Prevention Act (Family Code section 6200 and following) provides for domestic violence restraining orders. Under Family Code section 6320, the court may issue an ex parte order prohibiting conduct including harassing, threatening, stalking, contacting the other party directly or indirectly, and disturbing the peace of the other party. "Disturbing the peace" refers to conduct that, based on the totality of the circumstances, destroys the other party's mental or emotional calm. California law generally treats coercive control as one form of that conduct. The page on restraining orders covers how these orders work.

Service rules apply. Under Family Code section 243, the respondent must be personally served with the petition, any temporary restraining order and the notice of hearing at least five days before the hearing, unless the court shortens the time. In custody proceedings, the section 3044 presumption described above applies when the court makes a domestic violence finding within the previous five-year window. Under Family Code section 3170(b), domestic violence cases are handled by Family Court Services in accordance with a separate written protocol approved by the Judicial Council.

Evidence in these cases is usually built from lawful sources: one's own messages and records, documents produced in discovery, witness declarations and court files. Recording is not a simple shortcut. Penal Code section 632 generally prohibits recording a confidential communication without the consent of everyone in it, subject to limited statutory exceptions. It does not cover every recording, and it does not authorize getting into another person's accounts, devices or communications.

Survivors looking for general information about family court can find resources at WomensLaw.org and HelpingSurvivors.org.

Whether a run of filings is ordinary conflict or a pattern the court will act on depends on the record itself: what was filed, when, on what facts, what the court already decided, and what it cost. A consultation can walk through that timeline, which statutes fit the conduct, how section 271 or section 128.7 might be raised in the existing case, and how a custody counseling session or a domestic violence finding could bear on it. The firm practices California family law only.

Contact San Diego Family Law Advocates to request a confidential consultation and talk it through.