If you disagree with the judge’s decision regarding your family law matter (whether it is about child custody or division of assets after divorce), you can file an appeal with a higher court to have the judgment changed or reversed. Once you appeal the decision, the higher court will review your case afresh, using the evidence presented during the initial trial to determine whether any legal mistakes were made. Here is a brief overview of the Appeals Process in a family law case.
Who can appeal?
A petitioner (the person who initiated the case) or a respondent (the person answering the case) can file an appeal in a family law case. Either party can file an appeal after the adverse decision if they are unsatisfied with the judgment. Keep in mind that you cannot present any new evidence during the Appeal process.
Grounds for Appealing
You cannot file an appeal simply because you do not agree with the outcome. You must have legal reasons to appeal. In most cases, people appeal when they believe some mistakes were made during the first trial. Mistakes might entail:
What happens during the Appeal process?
The court may reverse, modify, or uphold the whole or parts of the initial judgment. Reverse means that the first court’s decision has been deemed to be wrong, and is effectively cancelled or vacated. Affirm or uphold means that the original judgment was correct and should stay the same. Oftentimes a decision is upheld when the higher court concurs with the first court about the credibility of one witness over the other. Modify is when the court changes a part of the initial judgment.
How to start the appeals process
Once the family court makes a decision, you typically have 30 days to file a Notice of Appeal, which is essentially a document that contains the fundamental details of the case in question, including:
In the 30-day window, the appellant must present a copy to the respondent. Then, two copies of the Notice of Appeals to the court that entered the original judgment, along with proof of service, must be filed. Proof of service simply means that the respondent has been notified about the appeal. One of these copies will subsequently be forwarded to the court of appeals.
After filing the appeal, you have to get all the transcripts and other records of the case. If you were not deemed indigent, you have to pay for the transcripts. Once this has been accomplished, you can prepare a full record of the case. This record will be used to support the appellant brief which will explain the grounds for the appeal. The record will include the judgment being reviewed, the evidence leading to the improper judgment, and any particular opinions made by the judge regarding your case.
How I Manage the Appeals Process for Clients
One thing to keep in mind is that while an appeal might serve as a mechanism to seek redress for what may seem to be an incorrect or unfair ruling, it’s not cheap. Hiring a skilled attorney with experience in drafting appellate briefs is very expensive because it is very time consuming.
When I am writing a brief I first have to read the record. The record would include a transcript of the hearing relevant to the judgment seeking to be reversed. This could mean reading hundreds of pages depending on the length of the hearing or trial. The record also includes reading the different motions and pleadings filed throughout the course of the case. I then have to identify the legal grounds to support the appeal or reversal and find facts supporting the appeal in the record.
Once I have an idea of the legal argument I will be using in the brief, I then have to find case law or legal precedent to support my legal argument. Ideally, I will be using previous decisions made by the same court I am appealing to for binding precedent to support my argument. If I cannot find decisions by the appellate court, then I will look to other courts to support my argument in an effort to persuade. Conducting this type of research can take a considerable amount of time as well because it involves reading lengthy court opinions and searching through databases of thousands of cases.
Finally, once I’ve found the case law I intend to use, I then have to write the brief itself, which can range from 15 pages to 50 pages long. There are strict formatting requirements for the briefs, and the style must be optimized to be persuasive. Writing the brief can also take days or weeks. The appellate process doesn’t necessarily end with the appellate brief. There may be other motions involved and, of course, a response filed by the other side that may need to be addressed. Because of all of the steps involved in writing an appellate brief, appellate lawyers command large retainers for these services – thousands if not tens of thousands of dollars.
The Appeals Process is a great opportunity to try and get an unfavorable judgment in your family law case overturned, if you believe you got the short end of the stick. A general rule of thumb however, is to consult with a family law attorney to help you understand what your options are. For further assistance, kindly contact JPA Law Firm at (305) 979-2267.