Child custody litigation is a gut-wrenching experience for all parents. Both want the same amount of time they had before the divorce or post-divorce they may be seeking a modification to gain additional time, but there is only a finite amount of time for custody and parenting time. That said when a parent loses a custody battle their first thought often is to appeal. Sometimes this is possible and sometimes it is not. Further, there are a number of different reasons to appeal. When and why you should appeal a loss in custody litigation is the focus of this blog post.
As a threshold matter, when a divorce is first filed, there may be an initial hearing where the court makes an initial determination of which parent gets physical custody and the parenting time afforded to the other parent under the Indiana Parenting Time Guidelines. While the Indiana Parenting Time Guidelines are applicable to all child custody litigation, the trend is more than guideline time. Every seasoned domestic attorney knows how hard it is to obtain a different custody and parenting time award at a final hearing months or years down the road. This is why it is key to properly litigate the preliminary hearing and your custody position. That said, if you seek physical custody but are only awarded parenting time, this is an interlocutory order and generally cannot be appealed. The only remedy is to seek a change in custody/parenting time by a successive preliminary hearing, which is normally a rare occurrence. So the take-away is if you seek physical custody, make your case at the preliminary hearing because if you lose, you cannot appeal and the trial court may not want to make a change in custody at the final hearing to promote stability for the children in their best interests.
In most cases, at the conclusion of a divorce trial or custody modification case, the trial court issues a final order on all issues that is appealable as a matter of right to the Indiana Court of Appeals. In theory, the strongest appeal is the initial custody order because it is gender-neutral and does not favor either parent. Thus, neither parent had a burden of proof and the trial court merely determined the custody based on what it believed is in the children’s best interests. Depending on where you are with a divorce, it is easier to obtain a reversal on appeal if you have requested special findings.1 With this request, the trial court must set forth its rationale for why it awarded custody to a given parent. If the record (the evidence) does not support the trial court’s findings on which parent should have custody in the children’s best interests, the Court Appeals may reverse. Either party may request special findings and the court has to issue the same if the request is timely made, namely before the beginning of the trial. On modification cases, they too are easier to obtain a reversal if special findings have been requested. In the absence of special findings, the Court of Appeals will affirm the trial court’s custody award if there are facts and inferences of the record to support the result (this is called a general judgment), given deference to trial court judges to assess the credibility of the live witnesses at trial.
The cases that make the most difficult to appeal are those where parents “have” to appeal because they have to know they did all they could do for their children. An emotional decision to appeal is not necessarily a wrong decision or one that is frivolous, but it is key to make the strongest argument and construct a well-written brief to make the best legal argument for the reversal of the trial court. In this case, the party can satisfy their desire to know they did all they could do for their child and, at the same time, have a realistic chance of appeal by drafting cogent arguments. Skilled appellate lawyers can help you meet both objectives. Hard cases or ones where the appellate issue is not readily apparent, unlike errors in the application of the law, sometimes reveal novel and powerful issues to appellate counsel. The take-away is an appeal is more than going through the motions, but an art form that can be applied to even prevail on facially weak appeals at times.
Ultimately, a party has the right to appeal any final custody order of a trial court. The decision to appeal and how to structure your appeal depends on the evidence you presented at trial (or didn’t present but should have) and whether the final judgment is based on special findings. Skilled appellate counsel can help you make the most of your decision to appeal and provide the best argument for reversal that can be made under the law. Ciyou & Dixon, P.C. advocates handle appeals of all types from all of Indiana’s trial courts. This blog is written to provide a general educational background on the appeals of custody orders. It is not intended as legal advice or a solicitation for services. It is an advertisement.