The downside of the juvenile court is definitely the appeals situation. Well, that’s the downside if you won in the juvenile court, anyway. If you lost at the juvenile court level, well, then, it’s absolutely your right to appeal! (Funny how there are two sides to every coin, right?)
But, today, I’m really talking about what happens if you won in juvenile court, and the opposing party notes an appeal. It can be incredibly frustrating, especially if you feel (as you obviously do!) that the right result was reached at the lower court.
I had a case like this the other day. There’s nothing that takes away the euphoria of a win more quickly than watching the other party’s attorney escort them straight over to the clerk’s office to note an appeal after the hearing while you’re still waiting to get the order you’ve been waiting months to receive.
Isn’t that the worst? Especially lately, since so many courts (like Virginia Beach, Chesapeake, and Suffolk, to name a few) are low on judges. They’re working to replace them, but it takes time! A judicial appointment isn’t something that anyone takes lightly. And, so, in the meantime, it takes ages – literally AGES – to get a court date. For my client the other day, it was ten months between filing and her trial date. Four months from filing to the initial appearance, and then six months from her initial appearance to her trial. TEN months total! That’s a long time to wait, especially when custody and visitation is hanging in the balance.
And then, to have your long-awaited trial, only for the opposing party to immediately appeal. It’s demoralizing. And it’s expensive! I mean, a trial in the juvenile court, even though it’s a lower court, is the same as a trial in the circuit court! It requires preparation, witnesses, exhibits, discovery… Hours and hours of attorney preparation, and it doesn’t come cheap. And then you have to do it all over again in the circuit court? Yup.
Unfortunately, it’s an appeal of right. It is absolutely the opposing party’s right to have the case heard again.
Will I be able to bring up my evidence from the lower court?
It depends on what you mean by evidence. If what you mean is “Can I bring the order from the lower court to show that I won there?” the answer is no.
The trial in the circuit court is a trial de novo, which means it’s a brand new trial. The evidence that you won before is irrelevant – though I’d be lying if I said that, in almost every case, it’s pretty obvious early on who the winning and who the losing party is! The judge will have a pretty good idea pretty quickly, though he can’t base his decision off of what the other judge ruled.
Sometimes, the judges talk about these cases, too. They’re not supposed to (hey, it’s the whole “de novo” thing), but they do. At a continuing education seminar I attended a little while ago, one of the juvenile court judges admitted to discussing a case with a circuit court judge – so it probably happens more than we even know. You can’t count on this, of course, but it’s also fairly safe to assume, probably in most cases, that the judge has a pretty good idea what’s going on here. Does it matter that you won in the lower court? Maybe, but not necessarily.
The law that the judge applies is the same, regardless of whether it happens in the juvenile or the circuit court. I do think it stands to reason that the two will agree, but that’s not necessarily the case. It depends on the issues, and it CAN vary. It’s probably a good idea to talk to your attorney about whether or not she believes that, in your case, it will differ between the judges. We can never guarantee results, of course, but knowing the judges and the issues involved can help make an analysis of what might happen in YOUR case a lot more accurate.
If what you’re asking is whether you can use the same evidence, witnesses, and exhibits in the circuit court – yes! In fact, you probably will. Except to the extent that the case has changed in the time since the entry of the last order, you can introduce all the same evidence.
My guardian ad litem will come up to the circuit court with me, too?
Yes. That can be good or bad, depending on whether you liked your guardian ad litem, and whether he or she recommended the result that you wanted. But, yes, he or she comes, too (after all, why would someone else need to get acquainted with the case?).
What about new evidence? Can I introduce that?
Yes! In fact, I think that’s the major benefit of the appeal. Since the juvenile court’s order is binding, and has to be followed, until the date of the appeal, you have all that time to gather new evidence about what’s been going on.
Have you made a change in custody, and it’s going well? That’s great evidence.
Especially when you consider that, to revert back or to grant something else would cause further disruption to an already-disrupted child. Remember – custody and visitation are about the best interests of the child, not the best interests of mom and dad. Before you say, “Its not fair!” or “The court is giving HIM the benefit of the doubt!” remember – it is not about you. It’s never about you. Or, at least, it’s only about you to the extent that the judge uses that to determine what is best for the child. It’s not about him, though, either.
In the meantime, between your juvenile and your circuit court trials, take the time to help your child adjust to whatever the juvenile court’s order is. Don’t talk to the child too much about the case; that can be harmful. Focus instead of your child’s physical, emotional, and social well being. If the child is in therapy, continue it. If there are any disruptions, deal with them in a healthy way, and help the child adapt. Then, you can have several months worth of good evidence about how well your child is doing.
Can I ask for attorney’s fees? This appeal is unnecessary, and expensive.
You can’t ask for attorney’s fees just on the basis of the appeal, unfortunately. If he, say, fails to respond to discovery, or something like that, you can file a motion to compel, a motion for a continuance, and request sanctions. But that’s it – and what you’d recover would be limited to whatever he cost you to enforce the discovery (or whatever it was). You won’t get attorney’s fees related to ALL your costs, or just because the appeal was unnecessary.
You’ll have to pay your attorney to represent you (if you choose to be represented by an attorney). Yes, that is expensive. It’s a trial! It’s a big deal, so, yeah, it’s expensive – especially when you consider the costs of the lower court proceedings, too.
Unfortunately, juvenile court appeals are just part of the process. It happens sometimes. And it’s a good idea to be prepared for it, because, sometimes, it happens. In fact, all too often, it happens!
It probably feels unfair, especially since the court obviously reached the right result before. But trust in the process, prepare (well, over prepare, I think that’s the best thing to do when it comes to a trial), and hope for the best. After all, one judge already decided in your favor. There’s probably (usually, anyway) a pretty good chance that two judges will see the law the same way – and don’t forget that you’ll have some time between the two trials, so you’ll be able to gather evidence in the mean time.
For more information about appeals, or to discuss an appeal with one of our attorneys, give our office a call at 757-425-5200.