Atlanta Attorneys for Appeals in Child Custody Matters

Child custody can be a contentious issue. If parents cannot come to an agreement over custody, the trial court can step in to help. Even when custody arrangements are set forth in the divorce decree, children grow up, and their needs change. However, when either parent disagrees with a final order by the trial court, they can appeal the judge’s decision and ask a higher court to review the evidence to seek a different conclusion.

Because appeals are constrained by time and generally prohibit the introduction of new evidence, if you need to file an appeal, you should not try to do it yourself. An experienced Atlanta divorce and family law appeals lawyer must draft a legal brief setting forth arguments for why the lower court’s decision should be reversed.

The child custody lawyers at Kessler & Solomiany, LLC are well-versed in the appellate process, specifically those involving family law, custody, and visitation orders. At Kessler & Solomiany, LLC, we understand trial courts err, and with our experience and knowledge, we can enhance your chances of prevailing on appeal. Call us at (404) 688-8810 for a confidential consultation about your appeal today.

Child Custody Appeal versus Modification

Georgia law requires a final order before a decision can be appealed. Temporary or non-final orders cannot be appealed. In the final order, the trial judge has made a custody determination deciding the most important aspects of parenting. These include:

• Physical custody (the party with whom children live)
• Legal custody (the party responsible for making parenting decisions)
• Visitation rights (one or both parents and grandparents)

The order must be filed on what is known as a “domestic relations final disposition form,” and the appealing party has 30 days from the date of entry of this order to file an appeal. Failure to appeal within this deadline effectively constitutes a waiver of the appeal.

Either parent may petition to modify custody (this is different than filing an appeal) if there has been a “material change” that would impact the child’s well-being. Official Code of Georgia (OCGA) Section 19-9-3 gives children 14 years or older the right to select the custodial parent. If the child turns 14 and wishes to live with the other parent, that might be considered a material change.

Direct Appeals Cannot Be About Money

Thus, OCGA Section 19-9-41 limits direct appeals in child custody matters to those involving “nonmonetary judgments.” Nonmonetary judgments involve the following aspects of child custody:

• Award of physical or legal custody
• Refusing to change or modify an order
• Holding a parent in contempt of the judgment

Parents who believe the trial judge made a mistake may appeal a final custody judgment but must abide by the existing order until it is reversed by the reviewing court.

Appealing a Final Custody Determination

In making a final decision about custody matters, the trial judge must weigh all factors that would serve the best interests of the child. This means the judge has already considered, among other factors:

• Emotional ties between the child and each parent
• Emotional ties between the child and any siblings
• The physical and mental health of each parent
• Each parent’s involvement or lack of involvement in the child’s social and educational life
• Each parent’s willingness to facilitate and encourage a relationship with the other parent
• The stability of each parent’s family unit
• Each parent’s employment schedule and flexibility
• Each parent’s home environment
• Each parent’s familiarity with and knowledge of the child and their needs

The “initial” determination of child custody may later be “modified” but, once final, become “binding” on the parties pursuant to OCGA Section 19-9-45.

Other Potential Custody Appeals

Generally, the ruling of the trial court is entitled to deference and will only be reversed in cases of “clear error” or “abuse of discretion.” These are high legal standards that will require skilled legal briefing. Some “nonmonetary” issues of custody that have their own rules for appeals may include:

• Children covered by the Indian Child Welfare Act (ICWA)
• Custody determinations made in foreign countries

In international adoptions and custody determinations falling under ICWA, Georgia family law courts will seek to enforce foreign and tribal laws in “substantial conformity” with those of the U.S. unless they violate basic tenets of human rights. Section 15-11-130 allows the Department of Family and Child Services to provide emergency care and supervision for seven days if the person in physical and legal custody of a child is “unable” to perform their custodial duties due to illness.

What to Include in an Appeal of Custody Determination

OCGA Section 5-6-35 allows appeals from judgments in matters involving alimony, divorce, and other domestic relations matters, including appeals from custody orders. In these cases, the appeal shall include the following arguments and documents:

• Why the appellate court has the authority to review the decision
• Errors by the trial court giving rise to the petition for review
• Exhibits such as a copy of the final order or judgment
• Copies of any responses to the petition or motion
• Certified copies of relevant records or transcripts

The party opposing the appeal has ten days from the date the appeal is filed to respond. The response may include similar copies of the record described above or just point out why the trial court did not err in its prior ruling. However, OCGA Section 9-15-14(b) prohibits “frivolous” appeals brought specifically to cause “delay or harassment,” so you will want to consult a seasoned custody appeals attorney before filing a petition for review with the court.

Contact an Atlanta Child Custody Appellate Attorney

Many parents claim the other party lied to obtain a favorable child custody judgment. Trial courts make mistakes, and their judgments have been reversed on appeal. If you believe these or other factors led to the wrong custody determination, remember that appeals are delicate and require skilled professionals. Contact the Atlanta custody appeals attorneys of Kessler & Solomiany, LLC at (404) 688-8810 to perform a confidential evaluation of the basis for your appeal.