Family Law involves numerous highly emotional areas. When legal cases involve family matters, clients may require extra guidance. Additional help becomes necessary so intense feelings don’t interfere with sound judgment.
Sometimes cases are handled out of court with an attorney’s guidance using Alternative Dispute Resolution and Collaborative Law. This saves time, money and stress. Otherwise, cases are decided in the Family Division of Circuit Court.
Our law firm has over 30 years’ experience in Michigan family law & divorce appeals. If you wish to file an appeal on your case, we can guide you in the right direction.
What Can Be Appealed?
Examples of family law cases that can be appealed include:
Additionally, a tremendous amount of paperwork must be obtained, filed, and filled out in a timely manner. So, it remains vital to contact an experienced family law attorney to guide you through this complex procedure.
Types of Michigan Family Law/Divorce Appeals
There are two types of family law appeals in Michigan: appeal by right and appeal by leave.
Appeal By Right This appeal includes final orders of divorce judgments and post-divorce court orders.
Appeal By Leave This appeal requires permission from the higher court before filing an appeal. This type of appeal includes: child custody, parenting time, child support, and spousal support, orders regarding attorneys’ fees and any others from after a judgment was entered. An attorney can advise you regarding your case and its merits for an appeal.
Child Custody Appeals
Losing a child custody case is heartbreaking and remains difficult to change. Basically, Michigan Law states that child custody and parenting time are modifiable when there is a material change in circumstances. So, if you lose custody or are unhappy with a visitation schedule an appeal may or may not be appropriate.
Michigan has two main types of custody appeals. The type of appeal depends on where the initial custody determination took place. For example, was the custody agreement established by The Friend of the Court or was it a result of a trial court order?
Friend of the Court Appeal- If the custody arrangement was established by The Friend of the Court and you disagree with the result, you have the right to have a trial to determine custody. In other words, you don’t proceed to Appeals Court right away. The Michigan Friend of the Court will make recommendations regarding custody and parenting time and the Trial Court will make a final ruling based on those recommendations.
Michigan Court of Appeals- If you are unhappy with the Trial Court’s decision you may be able to appeal your case to the Michigan Court of Appeals. A lawyer can advise you if this is possible in your situation. If the Trial Court made a wrong decision, the Court of Appeals will fix it.
Interlocutory and Special Issue Appeals
Even if you don’t have the ability to file an appeal by right, you can ask the permission from the Court of Appeals to file an appeal from an order. This would be the case for orders that are not considered “final”, such as a temporary order issued while the case is pending (also called an “interlocutory” appeal), or if the appeal is not filed timely.
These appeals may involve jurisdiction, venue, or other evidentiary issues. You may be able to pause or “stay” the trial court case while the appeal is pending. In each case, you need to explain the harm caused by awaiting final judgment or the reasons why the appeal was not filed timely. The Court of Appeals does not grant permission often, but if you have a special or novel issue, such as the intersection of multiple laws or the application of a new law, the Court of Appeals may decide to hear your case.
Family law is complex and ever-evolving, so reach out to Kelly & Kelly P.C. today to determine if an appeal of this type is right for you.
When can you file an appeal? Most family law cases are divided into two separate categories in the trial court level: pre-judgment and post-judgment. This distinction is important on the appellate level also. A final judgment resolving all outstanding issues, such as a divorce judgment or an initial final custody order, is typically appealable by right. This means you can file an appeal and you do not need to ask special permission from the Court of Appeals prior to filing. Many family law issues, such as custody, parenting time, and support, are also modifiable. Certain orders disposing of post-judgment motions for modification are also appealable by right. You should consult with a lawyer as soon as possible after you receive a copy of your order to determine if you have the ability to file an appeal.
How long do you have to file an appeal? A claim of appeal by right must be filed within 21 days after the entry of the judgment or order you wish to appeal. This means that time is of the essence. Pay close attention to the entry date of the order or judgment, as it may not be served upon you immediately. In addition, the 21 day deadline can be extended by the filing of special motions in the trial court. Additionally, service of the judgment or order is important to determining whether the appeal of right can be filed timely. If service was not properly effectuated or no proof of service was ever filed, the time to file a claim of appeal by right may be extended.
Should your trial attorney file your appeal? By the time you are considering an appeal, you may have just survived a stressful and drawn out trial court process. While your trial court attorney likely knows your case well, there are some good reasons to consider new appellate counsel. First, the skills that make a great trial attorney do not always translate to the appellate process, which lends itself primarily to research and writing. Second, it never hurts to have an attorney look at your case from a new and fresh perspective. Lastly, depending on how your case was presented, new appellate counsel may have to consider issues about strategy that your trial attorney might not have considered. The best time to consult with an appellate attorney is before trial if you are considering taking an appeal.
If you win an appeal is your legal fees covered? As most family law trial attorneys will tell you, it is not easy to win attorneys’ fees or costs at the trial court level in a family law case. However, when you take an appeal to the Court of Appeals, you should be aware that the winning party is often permitted to “tax costs,” meaning that if you win, the opposing party may have to pay the costs of your appeal. This makes the success of your appeal even more imperative.
What should you do if an appeal is filed against you? Even if you obtain a favorable judgment in the trial court, what should you do when the opposing party files an appeal? If you are served with a claim of appeal, contact Kelly & Kelly P.C. to discuss how to respond and whether any appropriate motions can be filed in the Court of Appeals. If you avoid consulting with appellate counsel, it may result in long delays and losing the security of obtaining a favorable judgment.
Kelly & Kelly P.C. Can Help
It’s important to note that the Appeals Court will only overturn the Trial Court’s decision if there was an “abuse of discretion.” Basically, the Appeals Court must find evidence of bias and poor judgment to change the lower court’s ruling.
If you’re considering an appeal of any family law judgment contact a lawyer immediately. Since family law appeals are extremely time sensitive it’s vital to seek help as soon as a judgment is entered.
Kelly & Kelly P.C. is available to consult with your trial attorney before, during, and after your trial to ensure that your case is best positioned for a successful appeal.