Child Custody

questions & answers

Question: What if I don't agree to court decision in custody/parenting time self representation/ attourney for other party. can I file an appeal or express my reasons for not agreeing

Answer: It is not entirely clear what is meant by “court decision in custody/parenting time self representation/attorney for other party,” but the following assumptions are made to address this issue: (1) you represented yourself at a custody hearing; (2) your opponent had an attorney that you think did something wrong; and/or (3) you’re disappointed with the judge’s final decision, and wish to challenge it.

Concerning the points assumed above, you have some options. If you think an opposing attorney did something unfair, you have the option to file a complaint with the Arizona state bar. Remember that there is a big difference between an opposing lawyer being firm or aggressive (even if his or her arguments upset you!), and a lawyer actually breaking the rules. Don’t confuse the two.

If you simply wish to challenge the court’s decision, you can accomplish this in one of four ways. First, you can ask the same judge (i.e. who did the trial) to reconsider, alter or amend her judgment or ruling. ( Family Law Rule 84 ). Such a motion may not even draw a response from your opponent (unless the court orders one), and it does not freeze the deadline for an appeal! Judges often deny these motions out of hand, so you should take care to express your reasons for reconsideration carefully, with dignity, and *without* lots of CAPITAL LETTERS, underlined words or angry accusations (with exclamation points) about the other guy’s lawyer!!! Motions including junk like that are almost always ignored by everyone.

Second, you can ask the judge for a new trial ( Family Law Rule 83). These motions must be filed within 15 days after the court signs and files its ruling. Pay close attention to the judge’s minute entry. If it is not signed at the end (usually in typewritten form), that usually means that the other party’s lawyer was asked to draft a formal order for everyone (including the judge) to approve. If it was signed, then the 15-day clock begins to run from the day the order was filed with the clerk. (Yes, the 15 days include weekends and holidays.) The usual reasons for a motion for new trial include:

(1) denial of a fair trial; (2) misconduct by the other party; (3) newly-discovered evidence that makes a difference in the case, and that you couldn’t have known about before now (despite your best efforts); (4) refusal by the judge to admit important evidence offered by you; (5) admission of the other party’s evidence that you think the judge should have disallowed; or (6) the judge’s decision was not justified by the evidence, or violated state law. These motions can be complicated, and often involve referring to the transcript or electronic recording of the trial.

You will almost always want to consult with an attorney before trying something like this.

Third, you can file a motion for “relief” from the court’s judgment because you made a mistake or committed excusable neglect, because you have newly-discovered evidence that makes a difference in the case, and that you couldn’t have known about before now (despite your best efforts), or because of fraud or misconduct by the other party ( Family Law Rule 85). There are other reasons, too, but they are also quite complicated and you will want an attorney to help you.

Finally, you can file a straight appeal to the Arizona Court of Appeals. Appellate Civil Rule 9(a) requires you to file a notice of appeal within 30 days after entry of judgment. Appeals, too, become complicated, and use a completely different set of rules, so you will definitely want an attorney for that as well.