A significant number appeals taken to the Indiana Court of Appeals stem from paternity and divorce cases. In most cases, the appeal involves some form of disagreement regarding child custody orders issued by the trial court. This blog explores the three most common types of appeals, what you need to know to make an informed choice to appeal, and what kinds of issues are stronger for a “win” on appeal.1
The first type of appeal is the original custody determination. In paternity cases, this is generally litigation brought shortly after the birth of the child. In divorce cases, this what occurs after a final hearing. In each circumstance, the trial court weighs all the factors, including some set forth by statutes, that impacts the child’s life to make a determination as to which parent to award custody in the child’s overall best interests. These are stronger cases for appeal because there is no presumption for either parent and both are on equal ground. In these appeals, assuming the trial court did not make an error of law, the appeal focuses on the facts presented in the evidence (testimony and exhibits) to show the trial court abused its discretion. This means the trial court’s decision, looking at these factors, was not in the child’s best interests. The Court of Appeals defers to the trial court’s weighing of the evidence—judgment of the people—because the judge observed all the verbal and non-verbal communications. However, if all the evidence on appeal leaves the Court of Appeals with a “firm conviction” the trial court made a mistake it may reverse a trial court’s custody order.
The second type of common child-custody appeal is where a parent has filed a petition to modify custody alleging a substantial change has occurred in the current custody situation and maintaining custody is no longer in the child’s best interests. This is a harder and higher burden in the trial court. Therefore, the initial custody litigation is so important. However, there are three common scenarios where custody is modified and leads to a viable appeal. The first is where a string of “little” events in the current custody situation, considered together, demonstrates a substantial change in circumstances where keeping custody in the parent is not in the child’s best interests. This is generally reflected by a drop in the child’s grades, absences from school, and getting into trouble or acting out. The second is where there is some catastrophic event, such as a custodial parent’s arrest. The third is when a child gets older (14) by statute and wants to live with the other parent. The parent seeking custody modification must prove a substantial change, and if the trial court judge does not modify custody and maintains custody that is not in the child’s best interests, the Court of Appeals may reverse. The key to a successful appeal in these cases is keenly tied to presenting the evidence to support the substantial change at trial.
The third appeal stems from relocation. The reality in today’s world is that jobs move and new relationships form for parents, but parents are tied together forever by a child. Assuming a court denies relocation or modifies custody, there may be errors of law that may be raised on appeal that are given no deference by the Court of Appeals. These are typically the burdens of proof. The parent seeking to relocate with the child must establish the move is made in good faith and for a legitimate reason. If it is, the burden shifts to the other parent. Woven into these burdens is the overarching best interest’s standard. Thus, it may be a question of law is the issue for appeal relative to the burden on each parent. Also, a key point on relocation that may result in a strong appellate case is often lost on parents who do not want the change—relocation itself and by itself is not a basis to deny relocation with the child or modify custody. This would punish the relocating parent and interfere with his or her constitutional right to travel.
All in all, these reflect the most common types of custody appeals and potential challenges and arguments to present on appeal. Appeals are highly technical both in the appellate rules and type of argument that is best to result in a reversal if you seek an appeal. Dixon & Moseley, P.C. attorneys handle appeals from all Indiana counties to the Indiana Court of Appeals and, as necessary, to request the Indiana Supreme Court to accept the case and consider it on appeal. This blog is written for general informational purposes. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- The term “custody” for purposes of this blog covers physical custody.
