It can be very difficult to decide whether to appeal a child custody order. The Court of Appeals generally gives trial courts substantial deference in making child custody decisions, which makes it difficult to obtain reversal. Nevertheless, many parents feel strongly about the need to do something when they receive an adverse child custody decision from the trial court. Ultimately, the decision is highly personal. While no attorney can fully understand your family’s individual circumstances, the following are some factors you may want to consider in making your decision.
Did the trial court make a legal error?
The first step in deciding whether to appeal a child custody decision is to analyze the trial court’s order. The cases most likely to be reversed on appeal are those in which the trial court applied the wrong legal standard to make its decision. For example, the trial court may have improperly applied the best interests standard when it should have applied the endangerment standard, or the court may have failed to consider the presumption against joint legal custody in cases of domestic abuse. When these legal errors are present, there are good grounds for appeal. By contrast, when the trial court applies the correct legal standard, but simply found the opposing party more credible or weighed the evidence differently than you would have liked, it will generally be very difficult to obtain reversal.
Is your child safe under the current order?
The safety of your child is obviously the highest priority. Often, a parent might not like the child custody order, but they can acknowledge the child is not in any real danger if the order continues to be in effect. When this is the case, it might not make sense to appeal given the low likelihood of success. On the other hand, if you believe the trial court’s order creates a real risk that your child could be harmed, you might decide to pursue an appeal even if the chances of reversal are low.
How old is your child?
The appellate process is not fast. It can take a year from the time the appeal is filed until you get a decision from the Court of Appeals. For this reason, if your child is an older teen, it often does not make sense to appeal. On the other hand, if your child is very young and you will be living with the trial court’s order for many years, the incentive to appeal may be higher.
You may return to the same judge
One practical consideration that parties often overlook is that after the appeal is over, the case will likely be returned to the same judge who made the original decision. Most judges are understanding that appeals are a normal part of the judicial process, but you may want to consider how your judge will react to the fact that you challenged their decision on appeal.
Consider alternatives to an appeal
Sometimes an appeal is not the best option to change the child custody order. One possibility is to instead bring a motion for modification to the trial court in the future. This can be particularly appropriate if new circumstances have developed since the trial or when there is a question about whether a party is improving past bad behavior. On appeal, the question is always whether the trial court made the right decision at the time it made its decision with the evidence that it had before it. But on a motion for modification, the trial court can consider events that have happened more recently. Parties should consult with both an appellate attorney to evaluate the likelihood of success on appeal and a trial attorney to evaluate the likelihood of success on a future motion for modification to compare the options.
If you would like to speak to an appellate attorney about appealing a child custody decision, please contact Michelle Kuhl.