Sometimes, judges make mistakes and get the law wrong. Other times, your divorce or custody case may present a unique issue that attorneys and judges haven’t addressed before. When these things happen, it can result in appeals in family law cases. An appeal can be time consuming and expensive, but they are also hugely important, both to the families involved and to the future of family law in California.
When to Appeal Family Law Decisions
An appeal is a request for a higher court to review the decisions made by your judge and overturn that decision based on the law or the facts in your case. Generally, only the party who lost at the trial court level may appeal. This is called the “aggrieved party.” However, because divorces involve so many issues, either party can generally appeal a family law decision based on the parts of the opinion that did not go their way. An appeal can result from issues related to:
- Division of property
- Child Custody and Visitation
- Financial Support (Child Support or Spousal Support)
- Sanctions and attorney fee awards
- Domestic violence restraining orders
Family law appeals are an important tool to make case law, correct judicial error, and hold courts accountable. Not every divorce trial or custody hearing results in an appeal. In fact, very few families’ cases are heard by the appellate courts. However, there are several reasons why California family law cases end up being appealed:
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- The judge applied the wrong law to your case
- The judge’s decision does not match the facts presented at trial
- An issue in the case has no legal precedent
- The law as applied created an inequitable outcome
How Does an Appeal Work in Family Law
If you disagree with your judge’s decision, or believe he or she misapplied the law, your family law appellate attorney can help you prepare an appeal and argue your case in front of the Court of Appeal judges. Family law appeals must be filed within 60 days from the date of the filing of a Notice of Entry of Judgment or within 180 days after a court order or judgment was filed (if there was no Notice of Entry of Judgment filed). Preparing an appeal takes a lot of work, including ordering transcripts and researching legal issues, so it is important to talk to a family law appeals attorney quickly after the order is entered to get the appeal filed on time.
Once the appeal is filed, a panel of Court of Appeal judges will review it, along with any response filed by your former spouse or co-parent, and listen to the oral arguments of both sides (in most cases). Then it will apply the appropriate “standard of review” – the lens that the judges will use to review the trial judge’s decision:
- Abuse of discretion (for discretionary issues like discovery or restraining orders)
- Substantial evidence (for fact-based decisions)
- De novo review (for legal errors or applying the wrong law)
Using these standards, the Court of Appeal will determine if a mistake was made and either affirm (uphold), reverse (overturn), or vacate (throw out) the trial court’s decision. Once a decision is reversed or vacated, the case will generally be remanded to the trial court for additional hearings and orders.
You may also be able to file a writ with the Court of Appeal to obtain emergency review of specific issues. Writs resolve much faster than a standard appeal and can sometimes be used in the middle of a case when time is of the essence. Some of the most common family law writs involve:
- Prejudgment child custody and visitation orders made ex parte (without a hearing) or at a Request for Order hearing
- Orders for exclusive use and possession of the marital home or vehicle prior to judgment
- Discovery issues
- Orders denying continuance of trial
- Orders denying a motion to quash for lack of personal jurisdiction
California Supreme Court Appeals
If you disagree with the Court of Appeal’s decision, you can then ask the California Supreme Court to review the case. You generally only have 40 days to file a petition for review in the California Supreme Court once the Court of Appeal opinion is filed. Your family law appeals attorney will guide you in making the decision whether to file the petition, and whether the Supreme Court is likely to accept the request and review your case.
Issues to Consider Before Filing Appeals in Family Law Cases
Appeals are not just “second shots” at trial. You won’t be able to put on new evidence or update the Court of Appeal about what happened after the order or judgment was entered. Instead, the Court of Appeal will look at exactly the same facts that were presented at trial and review the decisions made based on established statutes and prior case law. Just because you disagree with a judge’s decision doesn’t mean there is a legal basis for an appeal. Instead, your family law appeals lawyer will need to carefully review the record to determine if errors were made.
Except in the case of writs, it can take the Court of Appeal up to a year to issue an opinion. That is a long time for families to live under an inequitable ruling. Sometimes it will be faster, easier, and less expensive to file trial court motions to modify or correct the error:
- Motion for reconsideration (to point out legal errors)
- Motion to set aside or vacate judgment (for equitable arguments, or when new evidence is discovered after the fact)
- Post-judgment motion to modify child custody, visitation, or child support when circumstances change after the order is entered
Some family law firms don’t do their own appeals but we do. At ADZ Law, LLP, our family law attorneys file appeals in our own cases, and take referrals from other lawyers whose firms aren’t equipped for the time and effort it takes to appeal a family law decision. We can help you review the record, identify appeals issues, and advocate for a fair application of the law in California’s highest courts. We invite you to contact ADZ Law, LLP to schedule a consultation to learn more about our team, and how we can help your family.
