In paternity (children born out of wedlock) and divorce cases, the initial determination is gender neutral and made without any preference for either parent; the court decides physical custody considering any relevant factor to what is in the child’s best interests. For parents who present a strong factual and legal case and do not prevail, many consider appealing the decision to the Indiana Court of Appeals. This blog analyzes the general considerations for whether to appeal a losing custody decision or move to modify it in the future.
That said, unlike most all other judgments in civil litigation, including property division in divorce cases, which are final and forever unless appealed, custody is always able to be modified if a non-custodial parent can show a significant change in circumstances. However, it is much more difficult to modify custody after the initial determination. This is the first consideration of whether to take an appeal of an initial custody determination. What do you think the custodial parent may do or fail to do in the future that could constitute a substantial change to allow modification in the children’s best interests? While this takes some speculation, if you do not see a substantial change occurring then an appeal may make sense if there are viable legal and/or factual arguments to raise on appeal. An appeal must have merit.
Second, the innate parental instinct of many parents effectively directs they do everything in their power to “fight” for their kids. Without an appeal, they cannot move beyond the trial court’s decision and accept anything less than knowing they did all they could do for their children. Identify issues and appeal. While not every issue can be remedied by an appeal, it is a right and may be used to narrow or define the case for future custody litigation in the trial court if it occurs. Clearly, an appeal does not prohibit a subsequent (or multiple) modification filings if the facts and law support the litigation. In most cases, the probability of prevailing on appeal on any issue is not clear in family law cases because they are so factually different from any other case. In addition, the Court of Appeals panels sometime issue differing panels on any given issue so that ultimately the Supreme Court may accept it on transfer and weigh on significant family law issues as it has in Indiana and across the country and at the United States Supreme Court in the past.1
Third, an option in factually weak cases (where the appeal would merely ask the Court of Appeals to disagree with the trial court’s assessment of the witnesses) is to not appeal and move to modify in the future if it is the children’s best interests. The downside to this decision is custody may be modified only upon a showing of a substantial change and it is in the best interests of the child.
Dixon & Moseley, P.C. attorneys handle child custody cases on appeal and at the trial court level across the state. This blog post is written as general educational material. It is not a solicitation for services and not intended as legal advice. It is an advertisement.