Will you take my family law appeal case?

Posted on Sep 2, 2020 by Katie Carter

We get calls, from time to time, about appeal cases, both for custody and divorce. It’s not the most common type of call – appeals are, after all, more rare than other types of cases – but it happens. Of course it does! In a divorce or a custody case, there’s a lot at stake; sometimes, judges get it wrong. Sometimes, we have to figure out what the next best step should be to help a woman make sure she gets what she’s entitled to, or to correct a big mistake.

When do appeals happen in family law cases?

There’s really two ways an appeal can come to us: either from the juvenile court, or from the circuit court.

It matters because there are different rules associated with each type of appeal, which will have an impact on whether we can take the case or not.

Juvenile Court Appeals

The juvenile courts hear child custody, child support, visitation, and spousal support cases. They hear them initially, in some cases, when they’re not part of a larger divorce action, and they also hear modification cases. A modification case happens when one or more of these things was already determined as part of a divorce, but, because of a material change in circumstances, one or both parties petitions the court to change the original order.

Anything related to the children is automatically modifiable based on a material change in circumstances, so it’s possible to go back to court over and over to hear and re-hear custody and visitation.

Once the divorce is done, whenever there’s a petition for modification filed, it’s technically its own new case, and it starts in the juvenile court.

The juvenile court is the lowest court, and any verdict rendered in juvenile court is automatically appealable to the circuit court, where you get what’s called a trial “de novo”. We like to use Latin in the law, even though it’s totally a dead language – it just adds to the confusion, don’t you think? Well, “de novo,” in this context, means brand new. It’s a whole new trial, and nothing from the lower court comes up to the circuit court with you.

You put on an entirely new trial. You do discovery again. You subpoena your witnesses again. You do the whole kit and caboodle again. Is it expensive? Absolutely; it’s a second trial. But it’s another bite at the apple; another chance to convince a judge (a different judge!) that you should get your way.

Of course, if you have the right to appeal, so too does he, which you have to remember. So, even if it goes your way at the juvenile court, you could have to do it all over again in the circuit court if he appeals!

Circuit court appeals

So, once you get to circuit court, it’s harder to appeal.

What types of cases are in circuit court? Well, for our purposes (and, by that, I mean specifically for family law cases; I don’t do any other type of law), it’s divorce cases and, sometimes, standalone custody cases. A custody case can be standalone if it’s just custody – as in, like an appeal of a modification – or if it’s a divorce where the other issues are resolved.

The circuit court is higher than juvenile court, and appeals from the circuit court go to the court of appeals.

It’s not common for a case to go to the court of appeals from the circuit court; in fact, in order to do it, you must demonstrate that there has been a mistake of law applied in your case.

You have to know – and understand – the difference between a mistake of law and a mistake of fact. In a mistake of fact situation, you might say, “Well, we alleged x, y, and z, but the judge just didn’t get it,” which is different from, “Well, the whole thing was based on the legal principles of a, b and c, and the judge misapplied the provisions in section c, as set forth below”. It’s more complicated, and it requires specific legal knowledge.

In order to take a case like this, we have to be able to identify the mistake of law. So, in order to give you good advice about your case and your likelihood of success, we’ll probably need to see the transcript from the lower court case. (This is assuming, of course, that we didn’t represent you already at the circuit court level.)

It’s often both time consuming and expensive, so you’ll want to talk to someone local and experienced to help gauge your likelihood of success.

In the case of a custody case, for example, are you better off waiting until there’s a material change in circumstances (so you can file a petition to modify the existing court order) in juvenile court, or filing an appeal? For a divorce there’s not often the opportunity to modify, so you may not have a choice but to file an appeal, depending on the issues involved.

No matter what, if you’re planning an appeal, you’d do well to talk to an attorney about it. Sometimes – especially in the case of circuit court appeals – the attorney will need to do a little more research or even read your transcript before deciding whether or not to formally take the case. Sometimes, that takes the shape of an “advice only” retainer where we take the opportunity to review the materials we have at hand and make a decision, based on the relative merits and demerits of ac ase, whether to take things further.

Remember, too, that appeals often need to be noted within a specific period of time, so you’ll also want to act fast.

For more information or to discuss your appeal with one of our attorneys, give our office a call at 757-425-5200.