What Are the Basic Rules Governing Appeals in Family Law Cases - An Overview
The EnlightenedDivorce Blog™ has been in existence since 2008. Over
the course of that time, one of the things I've noted is how often
people get here by googling appeals within the family law and divorce
court experience. Similarly, we get thousands of visits about
reconsideration motions, or
how to deal with difficult family court judges, or about the
80-20 principle as it pertains to persuasive family law presentations. You as legal consumers are sending a message - so many are disappointed
by the rulings they get in court, and about the whole adversarial court
sponsered land of intimate relationship-endia.
Which is why I've written so much about
avoiding reactivity and
divorce trance. Legal consumers have the right to expect the system to provide them a
menu of better choices, and yet there is something about the angst of
relationship breakup that makes us all crazy. And, there is no way to
control the other person even if you've got a proactive side, besides
not poking at them. So, sadly, many people end up being forced to let
a government employee make their life decisions - and those for their
children. (Those government employees surely would rather be doing something
else). But that is not what today's Family Law Blog is about; instead,
I want to educate you about your appellate remedies involved in family
law matters, in a series of articles. This is the start - the overview.
Divorce court appeals are a complex and highly technical topic.
Which effort is a good reason, is it not, to Like our Blog pages?
Basic Concepts for Appealing Family Court Judge Decisions
The first thing to know is that you never, ever, want to need to file an
Appeal. You want to win at the trial court level. If you read our pages
regularly, you may have avoided mis-steps because we've given so many
tips (in fact, you can Google "Thurman Arnold" and "Tips"
plus the other keywords for your situation (custody, set-asides, fiduciary
duties, etc.), and you might find our articles quickly (also, try our
on-board search engine at the top right of every page,
visit our FAQs page, our
Resources Page, and our
Family Statutes Page as there are commentaries and links back and forth on many of them - thousands
of them that will land you just where the Universe wants you to be). Chances
are though, you only found us after something shifted terribly in your
life and a bell has been rung, and now you are ready to address it or
level the playing field and so now need to figure out what to do next
to get out of this mess!
To the extent you have the energy and ability to change course or correct
what hasn't worked well for you in your
attorney fees, or
child custody cases and more, this begins an explanation of what you might do about
it. The rules for filing an appeal vary very much depending on where you
are in the proceedings and the type of order or judgment that offends
you. Which is why I will attempt this in tranches, and not trenchers (but
you could grab a coffee and settle in with a meal if you choose).
Who Are the Trial Court Judges I May Be Faced With?
All family law matters are initially determined at the trial court level.
Your matter will either have been decided by a) a Superior Court judge
who was appointed by the governor and then maybe voted back in (or who
might be retired but who is called in to assist a county Court); b) a
Family Court Commissioner who was hired by the judges of the local county
courts; or c) a private attorney such as myself who serves as a temporary
Judge Pro Tem, when the regular bench officers need a hand because - God forbid, they
deserve a vacation, or better yet are off at Judicial College.
(While I owe you an article about the advisability of stipulating to let
a Judge Pro Tem decide your case, my opinion is that sometimes they may
be a better choice then a very newly minted judge who possibly doesn't
yet know much about family law; i.e., former DA's and PD's. You
are way more likely to bump into a temporary judge on the local court's
law and motion calendar, as opposed to a trial calender because Judge
Pro Tems are working for free, and generally need to return to their offices
if they have a steady practice).
A trial court judge will make a ruling based upon the menu of issues that
a moving party raises at the time they file a Request for Order (RFO)
application. Because actual trials where all the issues need to be adjudicated
are comparatively rare, most experience people have with family court
judges is at the
pendente lite stage, where temporary pre-judgment orders are issued. That is, in most
counties, the cattle call calender where judges have 30 cases and all
of 10 minutes to read everything you and your opponent has filed, and
then 15 minutes to listen to your ravings before turning to the next couple's.
Liken it to this: As you bounce around the Internet, you find a site that
interests you - hah, maybe like this one. But you stroll and scroll down
the screen rapidly, because generally there is so much crap to read (not
to mention pop-out ads) and you only want to know that which you find
important (relevant) to your inquiry. You don't have the time to be
led in circles or into cul de sacs, neh?
So too, the bench officer hearing matters involving requests for temporary
orders only has so much time to discern what they need to know in order
to make a reasoned decision and, well, to do justice for (or to) you.
And so, they make their calls about who to believe, and who to blame, and
they move onto the next case and the other eager litigants that are entitled,
equally with you, to someone imposing order upon their lives. These calls
are often based reason, upon intuition, upon unrecognized biases, and
whether they need to get off the bench to pee before their Depends are
wettenend. Who knows? They are just like you, though it may be the "you"
that will surface in 30 years. Read my article about
Dealing With Family Court Judges. It will give you more pointers about family court in your short read
than you are likely to find anywhere else (and its better to listening
to grandma's suggestions - though I could be a grandpa by now).
Okay, if you haven't already changed the channel here's some information
To Have a Successful Appeal, Do It Right in the Trial Court
What you really to understand first is that you have no chance of a successful
appeal if you don't cross the T's and dot the I's at the trial
court level. This requires a number of important points, many of which
are procedural: 1) You need to understand the Art of the Objection so
that evidence comes in that you fail to exclude and so essentially consent
to the Court relying upon it; 2) You need to ensure that you have an adequate
record of the proceedings, as in a court reporter and a transcript that
you can obtain since how can an appellate court review the record, short
of the parties to appeal reaching some sort of agreed statement of what
the issues or evidence was down below, without a
transcript?; 3) Request a
Statement of Decision before your Judge rules on your matter. We have sample forms to use as
a starting point; 4) You need to try in every way, before you appeal,
the see if you can get the judge to change his or her mind, as with
motions for reconsideration or
473 requests to undo your mistake, motions for a new trial, and the like; and 5) Try
in a realistic way to settle the dispute and examine your motives about
your argument with that Judge - are you just being spoiled or trancey,
and you will lose anyway? Just sayin' - not saying this is you. I
regularly share recent appellate court decisions that make you wonder,
what was the appealing party thinking? Here's a recent
appellate decision hoot that shows the perils of filing an appeal where you, or your client, has
lost all reason!
Because you will click outta here if this Blog gets much longer, that is
it for tonight's homework for you - read the links I've provided
in this Blog, try our upper right-hand search engine on the key words
that you care about, read other legal sites as well, and then come back
for Part II of what is going to have to be a mini-series! The education
that you seek is technical, and if you are committed to achieving your
family law related interests and concerns, don't cry if you won't
do the heavy lifting as best you can.
BTW, please don't call us about your appeal but you can comment to
these Blogs: We don't do appeals. We would only refer you to an expert
Appellate Lawyer who is a Certified Appellate Specialist, and I know a
few appellate experts whose names I am going to publish soon. 'Cause,
I don't want to get sued for malpractice, plus I prefer to duke it
out at the trial court level if I must when the other side is so dense
or butt-hurt that we cannot be reasonable together.
To Learn About Family Court Orders That Are Directly Appealable, Read Part 2!
To Learn the Basic Timing Rules for Filing Appeals and Extraordinary Writs,
Read Part III!
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Author: Thurman W. Arnold, III, CFLS, AAML