Can Child Custody be Appealed?
by Unbundled Legal HelpMarch 1st, 2021
Has a family court judge issued a ruling on your child custody case that you do not agree with? If you do not believe the decision was fair or in your child’s best interest, it is natural to ask “can child custody be appealed?”
Yes, if you do not agree with the decision that a family court judge has made regarding child custody, you can file an appeal to petition a higher court to change the decision, reverse it, or order a re-trial of the initial case. However, not all child custody decisions can be appealed. Learn more below.
What is an Appeal?
A child custody appeal occurs when one party requests a higher court (i.e. Appellate Court or Supreme Court) to conduct a review of a decision that a lower court (i.e. Family Court) has made on a case. It should be noted that this is not considered a “re-do” of your trial. The appeals court will only look at the evidence that was presented in the original trial and make a decision based on whether or not legal errors were made.
Those asking for an appeal are not allowed to submit new evidence or introduce new witnesses. Appeals are seen by the Court of Appeals or your state’s Supreme Court. The court overseeing the appeal can set aside a judgment, confirm it, modify it, or potentially order a new trial. Learn more below about appealing child custody decisions.
Can Any Type of Child Custody Order Be Appealed?
In some child custody cases, courts issue an interlocutory order (otherwise known as a temporary or non-final order). These types of orders can be issued for a variety of reasons including child safety concerns. Courts may also issue a temporary order of custody to avoid confusion during the process of the trial.
If a non-final order is issued, they typically cannot be appealed. In most cases, parents must wait until the family court issues a final and complete order of child custody, and then they have the ability to appeal the decision. Furthermore, settlement agreements cannot be appealed. However, if one parent is not happy with the agreement, they can petition the court for a modification.
How to Appeal A Child Custody Decision
It is important to note that the child custody appeals process will vary from state-to-state. You should review the child custody laws within your state about the specific rules that apply to your case.
If you decide to file an appeal, it may be in your best interest to work with a child custody lawyer. Should you decide to do so, they will draft a brief outlining the reasons that you are requesting an appeal. The brief will highlight legal errors and/or inconsistencies within the original ruling.
Once delivered, the court will review the transcripts from your child custody hearing along with the appellate brief and reach a ruling on your appeal. Learn more about the general process of filing an appeal below.
1. Understand How Much Time You Have to File an Appeal
There is typically a time limit imposed on those that wish to appeal a lower court’s ruling. In some cases, it may be a week, in others, it can be as long as 90 days (depending on the circumstances and state). If you miss your deadline to appeal the decision in your child custody case, you will likely not be eligible to appeal.
2. File a Notice of Appeal And Pay The Filing Fee
Most states require you or your child custody lawyer to file a notice of appeal and pay the filing fee within the appropriate time limit. Most states offer notice of appeal samples online or at the courthouse that you can use as a guideline to draft your own.
However, drafting a notice of appeal on your own can be challenging. If mistakes are made it can delay your appeal and/or have other negative consequences. Additionally, you must pay a filing fee at the time that you submit your appeal. In the case that the court has already issued an order to waive your fees, you may not be required to pay.
3. Serve the Notice of Appeal
You must deliver, mail, or contract a process serving company to serve the other party with a copy of the filed Notice of Appeal. The notice must be served to the other parent’s lawyer. If they do not have one, it must be served to the other parent directly.
Each state’s procedure for serving a Notice of Appeal slightly differs, so it’s in your best interest to rely on your child custody lawyer to handle this for you or conduct research on your state’s laws.
4. File a Brief
If you request an appeal, you must file a brief with the appellate court and serve a copy of the brief to the other parent. Child custody appellate briefs highlight potential legal errors made by the court that originally tried your child custody case.
Reasons to Appeal Child Custody
No matter how you feel about the final ruling, there are very few reasons to appeal to a child custody case. In general, your reasons to appeal must focus on legal errors or legal inconsistencies made by the original court that tried your case. Examples of potential grounds to appeal a child custody ruling include:
Neglecting to appropriately consider all factors that relate to your child’s best interest
Failure to allow certain evidence
Misapplying the law
Improper conduct by the other parent that was not properly addressed by the court
What Should I Consider Before Appealing a Child Custody Decision?
Appealing a child custody ruling can be costly, drawn-out, and have a major impact on the members of your family. Before you decide to file an appeal it is important that you consider your chances of success, how much it will cost, and how long the process can take. It can be difficult to make an informed decision without the input of an experienced child custody attorney.
What Are The Chances of a Successful Appeal?
Since most appeals conclude with the appellate court affirming the original judgment, it may not be in your best interest to file an appeal. Having a candid conversation with your lawyer about your case, potential grounds for appeal, and whether or not it’s worth the time, money, and stress that comes along with it can be beneficial.
Am I Ready For The Cost of an Appeal?
Appealing a child custody ruling can be expensive. This is true even if you are doing so without the help of a lawyer. Most jurisdictions require that you pay filing fees, trial transcripts, record assembly, record production, and assembly of the brief.
In addition, child custody lawyers are not cheap. There is a substantial amount of work that they must do to research, file, and argue an appeal on your behalf. In some cases, courts will order the parent filing the appeal to pay for the fees of the other party if they are unsuccessful and/or it is found that the appeal was meritless.
Am I Prepared For How Long It May Take?
The appeals process is often not quick. Not only will it take your attorney a lot of time and effort to review the records, research, and draft their argument, but the appellate court can take as long as a year to come to a decision.
This happens after you have likely spent a lot of time in a divorce and/or child custody case. In some cases, closing the case is the best interest of your child, as well as yourself. Thoroughly analyze your reasons for appealing, what outcome you seek, and whether or not it is worth going through the child custody appeals process.
Limitations of the Child Custody Appeals Process
Before you begin the appeals process, you should be aware that the appellate court will base its decision on the same criteria that the original court used.
Additionally, you will not have the opportunity to submit additional evidence or introduce new witnesses. Decisions made by the higher court will take into account the transcripts from your original hearing, a review of the alleged legal errors, and the arguments in the appellate brief that your child custody lawyer submits.
In most cases, you will not go in front of a judge or be in their presence when they are conducting a review of your case. This is why it’s imperative that you have an ironclad reason for seeking an appeal of a child custody ruling.
Child Custody Appeal Vs. Child Custody Modification
Filing a child custody appeal is much more involved and intensive than requesting a modification of a child custody order. If there has been a substantial change in circumstances, modifications can generally be filed at any time.
Appeals must be filed within a specific amount of time after the final and complete order has been issued. After speaking with an attorney and weighing the risks, many parents often decide to request a modification instead of seeking an appeal, unless an egregious error has been made by the original court.
Do I Need an Attorney to Appeal Child Custody?
You have every right to opt against hiring a child custody lawyer when filing an appeal. However, doing so could make an already difficult situation even more difficult. Appealing a child custody ruling is unlike most other matters of child custody. It requires knowledge of family law, local and state rules, appellate procedure, legal research, and many other aspects of the law.
In general, appealing child custody is not something that you can successfully do without a specific skill set and knowledge base. Furthermore, a lawyer can help you to decide whether or not seeking an appeal is in your best interest.
How Much Does it Cost to Appeal a Child Custody Case?
Appealing child custody will usually cost more money than most other types of child custody cases. The court fees alone could cost between $50 - $150. In addition, a child custody lawyer is not cheap. Most attorneys charge between $3 - $5k just to begin working on your case. You can then expect them to bill you an additional $300 - $500 per hour.
The process of reviewing your case, researching, and drafting a brief can take a long time. In some cases it can take weeks, in other cases, it could be months. If you require your attorney to file your notice of appeal, request transcripts, serve your ex with the required documents, etc. then you should be ready for an expensive bill.
However, if you believe that you can handle certain aspects of your case without the help of a child custody lawyer, unbundled legal services may be a viable option that can save you a lot of money.
How Can Unbundled Legal Services Save Me Money?
Hiring a child custody lawyer to handle the entirety of your appeal is costly due to the amount of work, time and expertise that they must put into your case. There are certain areas of your case that an attorney is best equipped to handle (i.e. legal research, drafting an argument, etc.).
However, there may be other parts of your case that you feel comfortable taking care of yourself (i.e. requesting transcripts, serving documentation, completing forms, etc.).
Unbundled legal services can save you money by allocating certain aspects of your case to your attorney, while you handle the rest. Fees for unbundled legal services can be as low as $500 - $1500. Remember, the less time your lawyer spends on your case, the less you will have to pay.
Unbundled legal services may not be a good fit for every case. If your case requires a full-time child custody lawyer, our network of lawyers also offers full representation. Since we only work with individual attorneys and smaller law firms, the price for full representation is often more affordable than other available options.
Contact us today for a free consultation with one of our unbundled lawyers.