Sat. Mar 25th, 2023

Family Law Appeal

In family law appeals, it is important that your appellate attorney knows more than appellate law: they must also know family law.  Attorney Andrew J. Botros of Bickford Blado & Botros is an experienced appellate attorney and a Certified Family Law Specialist, certified by the State Bar of California’s Board of Legal Specialization. He has ably and successfully represented clients in family law appeals. His published appellate cases include Lief v. Superior Court (2018) 30 Cal.App.5th 868, In re Marriage of Kent (2019) 35 Cal.App.5th 487, and Menezes v. McDaniel (2019) 44 Cal.App.5th 340.

Some family law litigants (and even some attorneys) may think an appeal is just a “do-over” of what happened at the trial level. However, trials and appeals are two very different proceedings

Trial courts ask: “What are the Facts?”

It is not unheard of for a family law trial to last several days, or even several weeks. However, the oral argument on an appeal of a week-long trial will almost never exceed 30 minutes and usually doesn’t impact a case. So, why is that?

The reason why a trial can last so long is because the parties are offering their different versions of the facts. The parties are usually examined by both sides, other witnesses (sometimes expert witnesses with a lot to say) are also examined, and exhibits are introduced into evidence. In most cases, the witness’ credibility is a critical issue for the Court.  Accordingly, a lot of time and effort is devoted to either bolstering or attacking the credibility of witnesses. At the end of a case, the trial judge has to determine what laws to apply and how to apply them, but he or she must also determine what happened and who was telling the truth.

Appeals court: How does the law apply to the facts determined by the Trial Court?

On appeal, the factual findings made by the trial judge are given extraordinary deference and are extremely difficult to challenge. For instance, the determination of credibility is the exclusive province of the trial court. For example, consider the following: a trial court believed a raging murderer’s testimony that he saw the Pope steal candy from a candy store. 100 religious clerics from every denomination testified they were watching him the whole time and that there was no theft. Believe it or not, if the trial judge finds the murderer’s testimony more credible, that factual finding that the Pope stole the candy cannot be disturbed on appeal.

Basically, as long as any evidence in the record would support the Court’s finding, the factual findings won’t be disturbed on appeal. Unlike at trial, the Court of Appeal does not take witness testimony, and (except for extremely limited exceptions) it doesn’t review or admit new exhibits. As such, most of the litigation during an appeal occurs in the written appellate briefs. In fact, by the time the lawyers walk into the Court of Appeal to argue their cases, the judge’s already have a tentative opinion drafted.

What’s exactly is a Writ?

So when do you file a writ and when do you file an appeal?

First, let us address the practical differences between an appeal and a writ. Think of appeals as non-emergency cases and writs as emergency cases. Appeals can take a long time because the appellate courts are so busy. In California a party can reasonably expect the appellate court to rule on the appeal in about one year from the date the notice of appeal is filed. Also, in California, the judges are required to issue a written opinion in every case explaining their reasoning for either affirming or reversing the judgment. This is one reason why appeals take so long.

Writs allow a party, for lack of a better term, to “cut in line.” You can get a decision from the appeals court in as little as a few hours if the situation requires it. Writ relief is one hundred percent discretionary and, unlike in appeals, the Court of Appeals won’t explain its reasoning for denying relief it doesn’t want to.

The most prominent question (but not the only question) in determining whether an appeal or a writ request should be filed is determining if the order made by the trial judge is considered “final.” Final orders are described in Code of Civil Procedure section 904 through 904.5 Here are example of family law orders that are final:

  • Any judgment where issues are not bifurcated (bifurcated judgments have their own complicated appellate procedures to determine if they are final).
  • Any child support order, regardless if it is made before or after trial.
  • Any spousal support order, regardless if it is made before or after trial.
  • An order on a post-judgment RFO that requires no further action by the trial court.
  • Domestic Violence Restraining Orders.
  • A need and ability based attorney fee award made before or after a trial.

Final orders need to proceed by appeal absent extraordinary circumstances that make appellate relief impractical. A good example of a situation requiring writ relief in a final order was in Alan S. v. Superior Court. In that case, an attorney fee award was being challenged and if it wasn’t resolved immediately, the losing party could not retain their attorney and it would thus gravely affect the rest of the case. The losing party could not wait for an appeal, thus emergency writ relief was appropriate.

What family law orders must proceed by writ relief?

Here is a list of the most common orders that must proceed by writ:

  • A prejudgment order on child custody or visitation made either ex parte, or at a Request for Order hearing.
  • An order for exclusive use and possession made before judgment.
  • Hearings on discovery motions.
  • A hearing denying a continuance.
  • An order denying a motion to quash a case for lack of personal jurisdiction.

Appellate litigation can be difficult and complex and it is vitally important that you understand your rights. That is why it is essential that you contact a qualified family law attorney who handles writs and appeals to discuss your case. source


Can a family court decision be appealed?

California family court appeals

It is part of the complex nature of family law that family courts don’t always reach the conclusions that the participants seek. There are times when a losing party in a divorce or custody trial will have to accept the results of the case, whether they like it or not. There are other times, however, when they can question the decision and launch an appeal with the help of a California family court appeals lawyer. California law allows the appeal of most family court matters, and an unjust ruling can certainly be overturned.

Appealing an unfavorable decision in California

If you have endured the emotional and financial costs of a family law trial only to find that the court rules against you, even though you believe you had a strong case, you still have options. You can appeal the decision and continue to press your case. In answering the following three common questions, we will provide you with the essential information you need to launch a successful appeal.

How do you appeal a California Family Court decision?

You begin your appeal by filing a Notice of Appeal, which lets the court and the other parties know that you intend to challenge the initial ruling. The notice can be filed as soon as the order or judgment from the original case is signed by the judge and stamped “Filed.” Once this paperwork, known as the entry of judgment, has been completed your legal team can immediately file the Notice of Appeal.

The paperwork is the easy part, however. In order to launch an appeal, you must have a strong legal basis for it (i.e., you must show that the law was misapplied to your case or that factual errors misdirected the judgment). You must also base your appeal on issues you have already raised in court during the initial trial. You can’t raise matters in the appeals court that have not already been contested in the trial court.

How long do custody appeals take?

The appeals process can be time consuming. You have 60-180 days from the date the judgment is handed down to file your appeal. The appeals court can then either hear your verbal argument or they can reach a decision on the basis of briefs received from yourself and the other party. Either way, the court date is typically several weeks after your filing. After that, it may take several months before you get a final decision.

What is the average cost of an appeal?

There is no one predictable cost for an appeal. It will depend on your lawyer’s rates, the complexity of the case, and the size of the record. Some cases may end up totaling $10,000. Your specific circumstances would have to be considered to estimate costs.

Working with the courts of appeals 

When your case goes from a trial court to an appellate court the processes, handling, and application are significantly different from the original trial, and your expectations should be too.

Is the appellate court’s decision a final?

The decision that the appellate court reaches after considering your appeal will become final 30 days after the court hands down its judgment. Within those 30 days, you can still object and submit a petition against the ruling. If none of the parties involved in the case submits a petition within that 30-day window, the decision is final and can no longer be appealed.

Will the court of appeals accept the case?

Appellate courts are quite limited in terms of what appeals they can and can’t consider. An appellate does not so much act as a provider of a ”second opinion” in your case, but instead considers the legal process by which the trial court reached the decision. Therefore, in order for the appeals court to review your case, you must be able to show that California law was misapplied, that there was too little evidence to support the ruling, or that the trial court somehow abused its discretion.

What can the court of appeals do?

Appeals courts each consist of a panel of three justices, who review decisions made by trial courts to determine whether they were reached in accordance with a proper application of the law. An appeals court does not conduct a new trial but instead reviews the record in the court case to see if there were any legal or factual errors that led to the outcome. The justices of the appeals court can either uphold the decision made by the trial court judge, or remand the case, thus sending it back to the trial court.

The process to appeal a family law court order

The process of appealing a California family court order is relatively simple, which isn’t to say that it is easy or quick. If you feel you have good reason to appeal a trial court decision, you and your legal counsel must first file your Notice of Appeal. After that, the procedure rolls out over the course of a few months.

More information on how we approach appeals

An important question to ask yourself before appealing a California family court decision is whether you should even bother to do so in the first place. You and your legal support must weigh the costs involved and the strength of your appeal in terms of evidence showing legal errors or abuse of discretion. Your family lawyer may well advise you not to appeal as it isn’t always worth the trouble and expense. If the case is strong enough, then the key to lodging the appeal is in the Notice of Appeal itself.

Deadline to file the Notice of Appeal

The notice must be filed in a timely manner. The deadlines are strictly enforced because they are jurisdictional. If you fail to file your appeal in time, the court will not have jurisdiction to consider your appeal.

Contents of the Notice of Appeal

The Notice of Appeal itself is a short form that is easily and quickly filled in without any major preparations needed. It contains the name, state bar number and contact details of the lawyer, the names of the plaintiff and respondent, and indicates what type of judgment is being appealed. The real work is in the brief that is presented to the justices for deliberation. This document must contain the necessary evidence of the errors made in the California family court ruling, presented in a clear, concise and convincing manner.

Why family law appeals are so infrequent 

The important thing to remember about appealing a family court decision is that it is a last resort to be considered only if the family court case shows clear signs of error or misapplication of the law. What you really want to do is get your case right in the family court in the first place. Family law appeals are rare for a number of reasons. They are seldom successful as it is difficult to establish meritorious legal grounds for appealing. They involve considerable costs, not only for the appeal but for a retrial if the case is remanded to the California family court. Simply put, if you are going to appeal, you had better have excellent reasons. You must also have the financial and emotional wherewithal to pursue the appeal and the possible retrial and be convinced that the eventual gains of a successful appeal outweigh the costs.

Time limit for filing an Appeal

For a family law case in California, you have between 60 and 180 days to file your appeal (60 days after receiving notification that judgment has been filed in your case, or 180 days after the entry of judgment). This time limit is strict and non-negotiable. If you miss the deadline, you miss your chance to appeal, which is another reason why many people do not appeal family court cases.

Grounds for Filing an Appeal

If you do not have strong grounds for your appeal and your legal counsel cannot present this evidence clearly and convincingly, there is no point filing for an appeal. The grounds for an appeal are very specific: you must be able to prove that legal errors were made in your case and that these errors – not the particulars of your case – resulted in an adverse judgment against you.

How to file the Notice of Appeal 

As we’ve already mentioned, filing the Notice of Appeal is a relatively easy part of the appeals process, requiring the following four steps:

1. Prepare the Notice of Appeal

Your lawyer will prepare the Notice of Appeal and all supporting paperwork.

2. Make at least two copies of your Notice of Appeal

The original Notice is filed with the court. Before filing, two copies are made, with one being for you and the other being served to the opposing party.

3. Serve your Notice of Appeal on the other side

One copy is then served to the opposing party, either in person or by mail. Proof of service must be obtained to show that the other party has received the notification.

4. File your Notice of Appeal and Proof of Service with the court clerk

Before your appeal deadline, your lawyer will hand the original notice and the proof of service, together with the filing fee, to the court clerk.   

After you file your Notice of Appeal

Once you have filed your Notice of Appeal, the real work starts. You and your lawyer need to prepare your case and write a strong brief for the appellate court justices. Here are some matters to consider as you are preparing – or even before you file.

Know the child custody laws about appeal eligibility in your state

If your family court case involves child custody law, make sure to consult your state’s statutes for more information about the specific rules.

Types of child custody orders that cannot be appealed 

There are some child custody orders that are not eligible for appeal. For example, some courts may issue temporary or non-final orders (also called interlocutory orders). In this case, the parent who wishes to make an appeal must wait until the court has issued its final ruling. Only then can you appeal.

How parents can appeal a child custody order

Once the order is final, you can then file the appeal. Your lawyer will compile a brief explaining the reasons for your appeal. The court will then consider the brief, as well as transcripts of the original hearing, and decide whether to uphold or overturn the decision.

Limitations in overturning a child custody order

In an appeal, you are not permitted to present new evidence that was not presented in the original hearing. The appellate court considers the same evidence used in the original California family court case. The higher court will base its decision on the same principles used by the lower court.

Why you need an lawyer with appellate experience

The appeals process is a specialized one with a very order-specific set of practices and expectations. In order to navigate it effectively, you need the help of a lawyer who has experience with it. The right person for the job may not be the same lawyer who worked on your case originally. Look for an attorney who has successfully brought cases to the appellate courts.

How to find a family lawyer

When searching for a good family lawyer, remember that you don’t only want someone with high levels of expertise in their field, but also someone you can work with personally. You are dealing with personal matters that are very close to your heart. Make sure you find someone who understands and respects that and with whom you see eye to eye.

How to choose a family lawyer

Aside from the usual Google searches for lawyers in your area, ask friends and family for recommendations. This kind of word-of-mouth recommendation is often the best way to find an attorney that you connect with as well as one who can handle the legal and technical aspects of your particular case.

What do judges look for in child custody cases?

The guiding principle for a judge in a child custody case is the best interests of the child. The court will always focus on the child’s needs, not those of either of the parents. They will consider questions such as:

  • Where will the child be safest?
  • Where will the child receive their basic needs such as food and clothing?
  • Will the child receive proper supervision?
  • Will the child be emotionally supported?
  • Which parent has been the primary caregiver up to this point?
  • Is there abuse involved? If so, what are the best steps to remove the child from the abusive environment?

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