When considering whether filing an appeal is the right option for you, you will want to consider the following things:

• Time: An appeal can take up to a year or more from start to finish.
• Expense: Appeals are very difficult to do without a lawyer and hiring an appellate attorney can be extremely expensive. (If you are a victim of domestic violence, you may be eligible for pro bono (free) appellate representation from DV LEAP). Aside from the cost of an attorney, there will be a filing fee that is often between $100-$250. Also, you will probably need to pay for the written transcripts from the final trial in the lower court, which can be quite costly. Some states will waive the filing fees and transcript fees if you are low income, but many states do not offer this.
• Outcome: Even if you “win” on appeal, which is very difficult, the most likely outcome will be another trial, called a “remand.” This is where the appellate court instructs the trial court judge to fix the mistakes that the appellate court decided the trial court judge made. You may have to re-litigate one part or all of the trial again in the lower court and it does not necessarily mean that you will win the case – the trial court judge could still rule in favor of the other party. There is also a good chance you will be back in front of the same trial judge whose order you appealed.
• Emotional toll and safety concerns: If the other party is your abusive partner, it’s important to know that the appeals process is very long, which will drag out the conflict between you and the abuser and will create an extended time of uncertainty in your life. In addition, filing an appeal may anger the abuser, which could lead to additional abuse.

The good news, however, is that an appeal is decided only based on the written evidence and exhibits filed in court. Therefore, you will not have to testify or go through another trial at the appellate court. In addition, there is the potential that the court’s ruling on your appeal will change or strengthen the law to help others in similar situations.

Although it may vary by state or by the type of case that you are appealing, typically the grounds for an appeal are as follows:

The judge made an error of law
An “error of law” generally means that the judge in your case applied the wrong rule or “legal standard” to the facts of your case. This can occur if a trial court did not follow either the statute or case law in your state that is supposed to apply in your case’s circumstances. For example, in custody cases, a judge must determine what is in the child’s best interests. Most states have laws setting forth certain factors that must be considered, typically called “best interests factors.” If one of those factors is whether or not a parent committed domestic violence but the trial judge ignores domestic violence evidence in making the custody determination, you may have grounds to appeal based on an error of law.

An error of law is the strongest type of ground for appeal because the appellate court reviewing the case does not have to give any weight to what the trial court judge did. The appellate court will look at the law that was supposed to be applied and decide whether or not the trial court judge made a mistake.

The judge made an error regarding the facts
Generally, a judge’s ruling in the trial court must be based on the facts that are proven at trial. In most cases involving domestic violence and family law, there is no jury and the judge serves as the “fact finder.” As fact finder, the judge must consider the evidence and decide whether or not a certain fact has been proven. Because the trial judge has the opportunity to directly observe the evidence through witness testimony and documents, photos, etc., most appellate courts will very rarely second guess a judge’s factual findings. Therefore, a trial judge’s factual error is the most difficult to establish on appeal. Appellate courts will generally not overturn a factual finding unless it is clearly wrong (“erroneous”) and the record leaves absolutely no question that the judge was wrong.

The judge “abused his/her discretion”
A trial judge has a great deal of power to make decisions in a case, with the exception of decisions that are strictly about applying the law. Examples of this broad power, known as “judicial discretion,” include what evidence to admit during the trial, whether to grant a motion or request made by a party, and whether to grant a protection order or approve a proposed settlement agreement. Appellate courts respect the trial court judges’ discretionary power because they recognize that trial judges are in the best position to make these decisions. In general, an appeals court will go along with (“defer to”) a trial court judge’s decisions that are within the judge’s discretion.

Most types of errors will fall into this category of judicial discretion and they are very difficult to win on appeal, although not quite as difficult as in the case of factual errors. If a judge makes an error when using this discretion, it will not be a sufficient ground for appeal unless you can show that the judge “abused” this discretion. In “abuse of discretion” cases, the error is obvious because, for example, the evidence introduced at trial clearly does not support the judge’s decision or the judge’s decision was completely unreasonable. For example, let’s say in a custody case, when weighing the required factors to determine what is in the child’s best interests, the judge applies a lot of weight to the fact that the other party’s home has one more bedroom than yours, but applies very little weight to the fact that the other party has committed domestic violence and has a substance abuse problem.

Usually, you only have a short amount of time to file an appeal after the judge issues the order or decision that you want to appeal. To start the appeals process, you must file a Notice of Appeal within the time limit required by your state. The time limit will depend on what state you live in and what type of case you want to appeal and may be extended if you file a post-trial motion, such as a Motion for Reconsideration. In many states, but not all states, a Notice of Appeal must be filed within 30 days from the date of the final trial order. After you file the Notice of Appeal, there are other documents and/or further steps that will be required, sometimes called “perfecting the appeal,” and often these further steps will have deadlines. Examples of those additional steps are explained in The typical steps in the appeals process. If at all possible, you should consult with an attorney in your state about what these steps and deadlines are. If you are not able to talk to an attorney, many states have excellent appellate guides for unrepresented litigants on their judiciary websites that provide this information.