Appellate practice is different from trial court practice. Different rules apply. Family law cases are different than civil appeals because with family law, there is no jury. The court makes all of the determinations of facts and law. In a civil action, the court decides questions of law while the jury makes findings of fact. The judge instructs the jury on the law.
The “kiss of death” at the trial court level in a family law case is when the judge decides the case based upon the credibility of one party over the other. Because the appellate courts feel that the trial courts are in a much better position to determine credibility, they will rarely disturb the findings made by a family law court on the issue of credibility.
In addition, in family law cases, the judges are often asked to weigh a number of factors. The judge usually has wide discretion to make these determinations. A different judge could make a different ruling based upon the same facts when deciding a custody issue. Thus, it is very hard to overturn a trial court judge when the judge exercises his or her discretion.
So what then is the secret to winning a family law appeal? The answer is something called the standard of review. The standard of review governs how the Court of Appeal is going to look at your case. It is a very important issue that is frequently overlooked or not emphasized enough by inexperienced attorneys. The goal, and hence the secret, is to try to find errors of law made by the family court judge as opposed to seeking reversal based upon an exercise of discretion or a credibility determination.
As you can probably imagine, appeals can be rather complicated and there are a number of other rules and presumptions that apply to the appellate process. The goal, of course, is to win the first time at the trial court level. But even if you lose there, it may not be the end of the story. In short, an appeal may be a viable option, which should at least be considered if you believe the matter was wrongfully decided against you.
For questions regarding family law and civil appeals and litigation, contact the Law Offices of Richard A. Marcus at 661-257-8877.