What to Consider Before Appealing a Child Custody Decision

Judges are human and do not always get it right when it comes to decisions affecting families and children. Family courts have a duty to rule in the best interest of a child, but occasionally mistakes are made.

As a parent, you have the right to appeal a custody order if you disagree with the custody arrangement determined by the court.

Before bringing the case to the appellate court, it’s important to first consider the possibilities, challenges, costs, and even the statistical chances of success that come with it.

4 things to consider before appealing a child custody agreement.

What is an appeal?

People appeal adverse rulings when they are unhappy with the results. They may seek justice to prove that they are in the right and their ex-spouse is in the wrong, or they may believe that the judge in the custody case made the wrong decision. From a functional perspective, the appeal is a proceeding to allow a higher court to review a lower court’s decision.

If you wish to appeal, it is strongly advised that you work with a family law attorney. He or she will put together a legal brief, summarizing why you are asking for an appeal and will point out inconsistencies in the original ruling.

The court will then review the brief, along with transcripts of the original hearing. You will not be allowed to introduce new testimony or have the opportunity to speak directly with the appellate court judge. The decision is based only on your attorney’s brief and existing court transcripts.

The result of an appeal involving a family law decision varies. The court will either uphold or overturn the previous child custody ruling – or worse, you could lose with an award of legal fees to the other party.

What are your chances of success?

An important first step when considering to appeal is to have a candid assessment with your attorney on the likelihood of the appeal’s success. Consider what success or failure may mean after the appeal and how the appellate process may impact other disputed family matters while the appeal is underway. It’s also important to note that statistically, most appeals end up with the appellate court affirming the results from the trial court.

Also, keep in mind what success is for you. Ask the questions: Does a potential change in the judgment affect your children? How does an appeal impact your finances? All possible outcomes must be considered prior to filing an appeal, so you, as a divorcing or divorced parent fully understand the short- and long-term implications.

Are you prepared for the additional costs?

It’s no surprise that appeals come with a hefty price tag. Costs include the filing fees, record assembly, trial transcripts, production of the record, and assembly of the brief. These expenses need to be factored in along with the legal costs for your attorney to write, research, and argue on your behalf. As a result, the costs of an appeal are substantial and should be weighed against the odds of potential success.

In addition, jurisdictions allow appellate courts to order fees against the party who brought an unsuccessful appeal. An appeal that is in bad faith or meritless may result in not only the sting of losing again but also the additional pain of paying for the opposing party’s costs incurred by the appeal.

Are you in it for the long haul?

Appeals take a significant amount of time in order for your attorney to review the record, conduct the research, and write his or her argument.

An appeal of a family court judgment to an appellate court often takes a year or longer, and the time involved as well as the uncertainty of the outcome is not for everyone. After months of slugging it out with a spouse in the lower court and spending thousands of dollars, you may not have the desire to continue the fight.

In a child custody case, there are times when closure might be worth more than the time, cost, and toll of an appeal. It’s encouraged to conduct your own analysis of pursuing an appeal and explore all other potential options, including resolution.

In summary, the decision to appeal should be carefully weighed especially when it comes to child custody cases. All possible alternatives should be discussed with an attorney, including the substantial costs, time, and risks of losing the appeal – and most importantly, how the decision may affect your child.

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Considered by many as “the fixer” in Massachusetts family law, Matthew P. Barach is an esteemed family law trial and appellate attorney. He is the Founder and Principal of Barach Family Law Group, LLC, a boutique law firm dedicated to excellence in family law, and author of “The Family Law Guide to Appellate Practice.” With over 20 years of family law experience, Matt regularly appears before Middlesex, Norfolk, Worcester, Suffolk and Essex County Family Law Courts. He also appears before the Massachusetts Appeals Court, the Massachusetts Supreme Judicial Court and the First Circuit of Appeals. www.barachfamilylaw.com