Family Court Appeals Explained
Appealing decisions to the higher courts is not something that occurs automatically whenever a party is either unhappy or dissatisfied with the outcome in a case. Although it is tempting to believe that the purpose of the Courts is to correct what we believe to be an error in judgement or a misunderstanding of the fact and evidence, the reality is much different and is often more complex.
For a start, for your appeal to be allowed, arguably a number of things must occur. First and foremost, in order for a family court decision to be overturned, an appeal must be made to a higher court which deals with such appeals. For example, an appeal from a family court judge to the family Division of the High Court would be heard by a collection of judges sitting as an Appeal Court and such judges would need to find in favour of the appellant for the family court decision to be successfully overturned. By a fairly significant majority, most appeals are not successful.
Put into simple terms, an appeal means a request to a court for a decision to be reversed or set aside by a judge sitting alone in such a court which deals with Appeals. In the family law world , this could mean an appeal to either:-
The Family Court or High Court of England and Wales;
The Court of Appeal;
The Supreme Court;
The European Court of Human Rights and/or
One of the specialist tribunals
Or even more.
A request for an appeal can be made on a number of grounds. Regrettably, not all requests for an appeal are accepted as it is recognised that family court decisions are final and binding (or should be) and are not simply a disagreement with one judge’s interpretation of the law or evidence. Judges within the family court use their discretion at each stage of the proceedings and invariably have to make a decision based on the information available to it and in accordance with the legal framework required.
An appeal is essentially a second bite of the cherry which can go one of two ways; either the Law Society is upheld or it is in fact overturned. The former leaving the original decision in place whilst the latter achieves the objective that the appellant had from the outset of their application.
Reasons for a Family Court Appeal
Not just anybody who loses in family court can hypocritically complain about their bench trial. A Family Court losing party does need valid and objective grounds for their appeal of the trial decision. Just because a litigant disagrees with the decision does not justify the costly and exceedingly burdensome appeals process. You need to have both the money to spend and the fortitude to endure an appellate process that could take anywhere from 1 to 4 years, or longer.
Family Court awards may be overturned for errors of law or legal procedure. Some examples of legal errors that would warrant a new trial: where Family Court made an error on point of law (such as failure to address child support, or equal parenting time); where the decision was based on a factual error (for example, misidentifying who the real father of a child was); and where the court didn’t include relevant information (such as required by the Child Support Standards Act).
Family Court cases can also be appealed for "abuse of discretion," where the judge simply went off the rails and expressed bias or personal prejudice that led to an unjust decision. The appellate division has overturned Family Court custody decisions where the judge failed to permit the father’s trial attorney to renew an objection in order to preserve it for appeal, and also where the judge expressed prejudice about the father’s occupation and demonstrated bias against him when it came to determining custody and visitation.
When you contemplate an appeal of your Family Court trial decision, be honest with yourself. Is it really an incorrect application of law or legal procedure, or was it just your opinion that Family Court made the wrong decision? Is it really an abuse of discretion, or did you know all along the decision would not go in your favor, and you were just hoping to possibly "cash in on our investment," so to speak?
If you have legal grounds for appeal, then you need to meet with a litigator who has family law experience who can honestly assess your case. Appellate law is a different animal, and you do not want to put your future in the hands of someone who has no experience with appeals, or no experience with Family Court cases.
Please note that Family Court decisions are given significant deference on appeal, and the reviewing court will not re-examine the trial record in its entirety, and will not "second guess" trial judge’s credibility determinations. Breadcrumbs, breadcrumbs – they can help you arrive at a place you want to be if you follow them. But they won’t take you there. So don’t expect to re-argue the trial record in the appellate division – it’s not going to happen for most of your case. That’s why you need to establish a clear record below.
The Family Court Appeal Process
Your notice of appeal is just the first step in the appellate process. The steps after you file that paper are as follows, with particular attention to timeframes and details relevant to family-law appeals.
- Notice of Appeal Filed – Within 10 days of the Notice of Appeal being filed you must pay the deposit required by the court for the preparation of the record on appeal. The court should then order the court reporter to prepare the report, and give him/her the amount of the deposit.
- Transcript Requested – Within 10 days after the record is ordered, the appellant must designate to the court reporter the portions of the court reporter’s notes that should be included. The designation must include any exhibits admitted into evidence that the appellant wants included.
- Reporter’s Record – After the court reporter receives the designation, the reporter must prepare the record and file it with the appellate clerk. The reporter must file the record within 60 days after the notice of appeal is filed. If the appellant is not a "poor person," compliance is mandatory in federal courts, but in state courts it is generally not – unless the appellant wants the deadline to run out before filing a motion for extension of time to file the record.
- Clerk’s Record – By 10 days after the date of the filing of the notice of appeal, the parties should send written notice to the trial court clerk identifying the items that will be included in the clerk’s record.
- Record Filed – Within 30 days of the final order on the designation of the items that will be included in the clerk’s record, the clerk must file it with the appellate court.
- Mandatory Trial Court Review – After filing the trial court clerk’s record, the court (or in some cases, the appellate commissioners) will review the record to determine if the trial court committed reversible error. The appellate court will then issue an opinion of whether the record contains reversible error or, where there is none apparent on the face of the record, affirm the trial court.
- Supplemental Briefs and Decision – If reversible error is detected, the appellate court asks for briefs from the parties stating the possible errors and how they affected the case. The trial court is also asked to supply a supplemental record and a memorandum addressing the perceived errors. Supplemental briefs are filed after the supplemental record and memorandum have been received. After submission of those briefs, a decision is rendered.
Filing Deadlines and Timeframes
The family law appeal process in Michigan is generally governed by the Michigan Court Rules, which outline specific filing deadlines and other important timelines within which you have to take certain steps and file certain documents. One of the most critical deadlines is the 42-day waiting period before a notice or claim of appeal can be filed. Nearly all decisions of the family court are considered "final judgment[s]" for purposes of appeal; therefore, if you wait until the entry of judgment in your matter – whether it is for the change of a judgment entry or a new judgment order – you have to wait 42 days from that date to file your appeal. What happens if you don’t wait those 42 days? Your appeal is untimely filed. Missing the deadline will not be excused and an untimely appeal will be dismissed regardless of the reason. The 42-day window also applies to the filing of a motion for a delayed appeal. A delayed appeal will not be considered if filed outside of the 42-day waiting period. After the 42-days have passed and a notice or claim of appeal has been filed, you have 28 days to serve the other party with the claim of appeal. A properly completed proof of service must be filed with the court within that time frame and failure to follow these rules will cause the same problems as if the appeal were filed after the deadline: it will most certainly be dismissed. Following the notice and proof of service of the claim or notice of appeal, the case is assigned a docket number and the case is then transferred from the court below to the Court of Appeals docket on a conditional basis. Within 63-days from the filing of the claim or notice of appeal, each party must file their case on appeal instrument that outlines the issues that will be raised on the appeal, together with transcripts to be filed, if any, and any existing briefs filed in the lower court cases. Once this task is completed, the case is moved to the regular calendar of the Court of Appeals where it will be processed in the regular fashion.
Hiring an Attorney for Appeals
Family law appellate attorneys have the special skills and knowledge needed to advocate a case on appeal. They also know what is most likely to work in persuading both trial courts and appellate courts.
Whether you are asking the trial court (the intermediate appellate court) to change its ruling, or you are asking the appellate court (the Texas Supreme Court) to change the intermediate appellate court’s ruling, an experienced appellate attorney can provide significant benefits.
- A specialist appellate attorney will understand how said precedents and legal principles apply to your unique case. For instance, will it matter whether they vowed to end spousal support in mediation? Can a third-party successfully request in a child support case that they be excused from future support payments for any reason? An experienced family law appellate lawyer can examine how the precedents and procedural issues apply to your case and provide you with a legal opinion on which "side" is right.
- In addition to the above, appellate lawyers are experts at anticipating and arguing against responses or arguments which may be raised by the opposing party when seeking to set aside a final judgement in the trial court or at the appellate level. A good appellate lawyer is the best person to argue any case on behalf of the client, with the legal arguments closely matching the facts because they know the family court precedent and appeals procedures better than any one else. Appellate lawyers are masters of legal arguments, and they can advise on when to take an aggressive approach, when to negotiate a resolution, or when to seek an amicable solution.
- Appellate lawyers are very specific about the statutes and prior court cases which will apply to their clients’ cases and which must be researched thoroughly in order for them to provide their legal opinions. A good appellate lawyer will be very specific about the precedent and case law which applies to each case when requested by the client to clarify a situation. Skilled appellate attorneys are strong researchers and writers as well through their training and experience during their careers. In addition, appellate lawyers are highly specialized in their field of law with their specialized knowledge of essential family court rules.
- Highly specialized knowledge of the intricacies of family courts and family law appellate law is required to petition for a rehearing or rehearing en banc (a private panel of judges) when necessary. A good appellate lawyer should be able to know when, how & why to ask for a rehearing or rehearing en banc from an appellate court when necessary to protect their clients’ rights or that of a child and when to appeal a decision of a family court judge. However, there are a number of things which can be asked if necessary of a family court or appellate court which skilled appellate lawyers know of that persons who aren’t highly familiar with family law or appellate law are not aware of to protect their clients’ interests.
- In addition, knowledgeable family law appellate lawyers can help achieve successful outcomes in various mandates, petitions and certifications when necessary through their career. Appellate courts may also transfer certain cases back to the original trial court magistrate with certain directives to enter a new order to add with the review. A good family law appellate attorney is familiar with these other types of actions which can sometimes occur after an appeal is filed.
Appeals are complex and can be extremely difficult for non-lawyers to navigate. As a result, a family law appellate attorney should be consulted to assist in filing the appeal and provide guidance through the appellate process.
What Can You Get from an Appeal?
The final order may be upheld. "Affirmed" (no indication of error in the case); affirmed for different reasons (there was no error, but also no record evidence to support the finding [rare] or the appellate court disagrees with the rationale in arriving at the finding.) The case can be affirmed for different reasons; this can also happen when appellate court finds an error but it is not considered prejudicial.
The final order may be reversed. This is a win for the person appealing. The reversal can be a complete reversal or a partial reversal. Also, the case is reversed "for entry of judgment inconsistent with the Court’s opinion , " meaning it is not completely reversed and the case is remanded back to the lower court with the instructions.
The final order may be "vacated." The holding was overturned completely. Generally happens when the appellate court finds there was no deference appropriate to the lower court judge. A new trial is ordered. Appellate review of child custody and visitation orders are based upon the "best interest" of the child – sometimes called the "Chicago Test." Remanded means back to the same trial judge but he/she is required to follow the "Chicago Test."
The case may be remanded by agreement. Both sides agree that there are errors. When an appellant does get a reversal, the trial court does all the work over again.
The case may be dismissed. Sometimes this happens where the appellant has done something wrong. This usually means that the case is over.
How Much Does an Appeal Cost?
When considering whether to appeal a family court decision, it is important to factor in the financial costs of the process and the potential for a further significant financial commitment on such an appeal.
Although some Courts may waive the filing fee, many do not and there are also various other administrative fees to consider. For example, there are fees required to be paid for the preparation of the Appeal Book (often exceeding $1,000.00) and a transcript of the motion or trial record (at a similar cost). Moreover, the successful party on appeal will likely have incurred various disbursements as well (in the range of approximately $3,000.00 – $10,000.00) for which a claim will be made against the unsuccessful party on appeal at the end of the appeal.
If you are obtaining a personal loan from family or friends to fund an appeal, you will want to ensure that the terms of such an agreement are specifically set out in writing and that you and/or your family understand there is a very real risk that money spent on an appeal may be wasted. In short, money spent on an appeal is not necessarily money well spent and there is always a risk factor involved.
There are some excellent free legal services offered through Community Legal Clinics and through Pro Bono Ottawa. It is well-worth exploring whether you qualify for such services. They can help you navigate the appeal process at little or no cost.
Mistakes to Avoid
Inadequate preparation and failure to follow the rules of court are two of the most common traps people fall into when appealing from a family court decision. With some advance planning and by consulting legal counsel, may of these pitfalls can be avoided: Lay people often overlook important evidence that is to be included with the Notice of Appeal. For example, the court order, reasons for judgment and transcripts of the court’s oral reasons must be attached or incorporated by reference into the Notice of Appeal itself. You typically need the court order because that is the subject of the appeal. You need the reasons for judgment because often those will tell you what to argue. And you need the transcript of the oral reasons to ground many of your grounds of appeal. If you fail to send the Notice of Appeal and required documents to the Court of Appeal, they will not hear your appeal (or will very likely strike the appeal). You can avoid this by sending it by registered mail or obtaining a special manner of service on the filing & serving party. You have to file the Notice of Appeal within 30 days of the date the order you are appealing from is made. In limited circumstances, the time limit for appealing from a judgment may be extended by the court authorizing you to appeal out of time. However, these orders are granted only in circumstances where there is a real chance your appeal will be successful. This requires a deliberate analysis of the merits of your appeal and how much delay can reasonably be tolerated. The legal doctrine of delay is called "laches". If you have intentionally delayed, courts will be much less likely to permit you to appeal out of time than if the delay is reasonable. Although the factual issues at trial will not ordinarily be reconsidered on appeal, a live appeal to emotion can be demonstrated through the introduction of new evidence by video or even by reading it into evidence at the appeal hearing. New evidence may only be introduced – such as by consent – if both sides agree. A strong emotional argument may be supplemented by written and illustrative records, such as photographs that show the passage of time and the deterioration of a condition or the way circumstances have evolved in relation to the children. These can play a powerful role in explaining the current situation to an appeals court.
Common Appeal Questions
What happens to my child support, alimony, temporary attorney fees, or other claims while the appeal is pending?
Unless otherwise ordered by the court, the existing orders for child support, alimony, temporary attorney fees, etc., continue until they are modified by the court. If there are circumstances present in your case that require an emergency application to modify child support, alimony, etc., pending an appeal, you should consult with your attorney as to whether or not such an application is appropriate under the court rules.
How long will an appeal take?
The length of time an appeal takes will depend on the complexity of the appeal and the schedule that the court has for appeals. In the appellate division, the court typically schedules oral arguments within four months after filing the brief, although it has been known to take longer. The court is required to render a decision within three months of oral argument. Again, these time frames can be longer if the appeal is complex, or if the court has a heavier than normal case load.
What happens if I don’t have the money to pay my attorney to file an appeal?
In some cases where a party does not have the financial resources necessary to file an appeal and/or preliminary application for emergent relief, the trial judge may grant permission to proceed as an indigent litigant. That is, even though the issue may be financially significant, the superior court will grant a waiver of the filing fee and allow the indigent litigant to file the appeal . In this situation, the appeal is not automatically considered frivolous, although the appellate court will still dismiss an appeal that is truly frivolous on its face. If the motion is granted as a result of the indigent litigant’s financial condition, the Superior Court is still required to hear the appeal. However, a party’s financial status has no relation on the ability of the appellate court to dismiss on the basis of frivolity. This means that even if a litigant is proceeding in forma pauperis, the appellate court can still summarily dismiss an appeal that is deemed frivolous, meaning it has no basis in law or in fact. The biggest problem with proceeding as an indigent litigant is that the trial judge may not determine whether or not the appeal should be considered frivolous, and it will then be left up to the appellate court after the appeal is filed to decide whether or not the appeal will be heard. It should also be noted that an indigent litigant is not entitled in forma pauperis status in an appeal from a domestic violence matter in the family part. In any appeal from a family part domestic violence case, the appellate court requires prepayment of all filing fees and costs, and recently held that an indigent litigant who is appealing from a domestic violence restraining order cannot have the filing fees waived pending appeal.