Why Taking a Child Custody Appeal Is Much Different – And Potentially More Important Than Other Civil Appeals

In civil litigation, the trial and any appeals are one-and-done. This means that except for extraordinary circumstances, such as later trying to re-open the case,¹ a civil case later brought on the same issues or matter cannot be re-litigated under legal doctrines known as res judicata and/or collateral estoppel.² This blog post addresses child custody and related matters, such as support, that can always be re-litigated and why an appeal of an unfavorable judgment may be still vital.

As noted, custody and child support can be modified at any time upon showing certain facts and meeting a higher modification standard. A contested modification, except perhaps for child support, also becomes harder practically to establish the evidence (a substantial change) because the longer children live in a place the more established and rooted they become making the higher modification burden harder to meet.

For this reason, if you do not meet your legal objectives at trial on custody or support, you should consider an appeal, as a reversal may result in having to show a lower standard—again: Initially, custody is determined with no presumption in favor of either parent, so reversal on appeal or other relief may change the burden for future modification. The same for child support. More often child support appeals involved matters of law, such as a deviation from Child Support Rules and Guidelines (“CSRG”) and issuance of a child support order without findings or use of a worksheet. Questions of law and fact are reviewed differently on appeal.³

Having said this, the Court of Appeals reviews a “cold record”, which means it reviews the exhibits and transcript (the word-for-word testimony) of the witnesses without the benefit of being able to judge credibility by seeing facial expressions, vocal tones, and the like. For this reason, the Court of Appeals does not reweigh the facts.

This is where skilled appellate counsel may assist. Depending on this record, the Court of Appeals may reverse upon reviewing the record and the briefs. The briefs are the written books (up to 30 pages or⁴ 14,000 words) prepared by appellate counsel that highlight the alleged error of the trial court. The Appellate Court may reverse where the review of the record, as demonstrated by the brief(s), leave this Court “with a firm conviction that a mistake has been made”.

Additionally, the Paternity and Divorce Acts (Statutes), Supreme Court rules, and caselaw that exist in family law cases cover a wide spectrum of civil. For this reason, where a divorce involves a marriage that has lasted for a long time, it is a complex transaction; and despite their best efforts, trial court judges sometimes make decisions by applying incorrect applications of the law.⁵

Where this is the case, the Court of Appeals provides no deference to the trial court judges’ decision of law. This is the second way to perhaps correct an error (misapplication of the law) and be in a better legal position based on your objectives for the divorce and for future litigation since the burden for modification is higher. For these reasons, if you do not prevail at the trial of your divorce or paternity case or on a modification, a wise litigant consults with an appellate attorney, remembering there are only thirty (30) days to bring an appeal of a final order.

This blog post is written by attorneys at Ciyou & Dixon, P.C. who handle divorce and paternity cases of all types throughout the State of Indiana as well as appeals to Indiana’s Court of Appeals and Indiana Supreme Court. This blog post is written as general educational advice and not a solicitation for legal services. This is advertising material.

1. Indiana Rule of Trial Procedure 60(B).
2. French v. French, 821 N.E.2d 891 (2005).
3. Sexton v. Sexton, 970 N.E.2d 707 (Ind.Ct.App.2012).
4. Indiana Rule of Appellate Procedure 44(D), (E).
5. In re paternity of S.G.H., 913 N.E.2d 1265 (Ind.Ct.App.2009).