Custody court orders are often very emotionally taxing processes to go through. Clients are facing legal orders by the court that define how and when a parent can be with their child. It is for this reason that when dissatisfied with the outcomes, clients often seek the possibility of appealing a judge’s court order. Typically, it can prove challenging to appeal a custody court order given the underlying message it sends when seeking to go against a judge’s expert opinion/judgment based on the facts and evidence provided. Family law matters tend to be emotionally charged and there is a general presumption that the parties will likely be dissatisfied with outcomes that are not favorable to their demands. The process can be quite long, expensive, and difficult. However, despite the difficulties, appeals continue to be filed and this blog will explore some of the top reasons why custody court orders may be challenged.
- Best Interest of the Child
Appeals are a matter of determining cost vs. benefit, to go against a judge’s ruling can be quite challenging but in some circumstances, strongly justifiable. One of the biggest reasons why custody court orders are challenged is for the purposes of protecting the child/ren’s best interest - if a decision taken by the judge negatively impacts, overlooks or hinders the child’s best interest, the decision may be challenged. It is often the case that children’s needs change depending on their age, their geographic location, their familial relationships, etc. Therefore, this needs to be taken into consideration and any element of a decision that can have a severely negative impact on a child, is one that can be presented for appeal. This notion is particularly important given the fact that children are vulnerable individuals that require advocacy, representation and protection. According to the Canadian Bar Association, ‘best interests of the child’ is a three fold concept that is laid out as follows:
A substantive right - a primary consideration in actions concerning the child due to the child’s dependency, maturity, legal status and often “voicelessness”;
An interpretive principle - if a legal provision is open to more than one interpretation,
the interpretation which most effectively serves the child’s best interests should be
chosen;
A rule of procedure - legal representation, timely decisions, reasons for how a decision
was reached, how factors were weighed, and how the child’s views were considered.
As a result, the appeal for the best interest of the child is arguably one of the most important and relevant appeals issued against family law custody court orders.
- Failure to Allow Evidence
It is often the case that parties are given the opportunity to present their evidence in a formal hearing, but it is also the case that some of the evidence brought forth is objected to and excluded for the purposes of the custody decision. In such circumstances, some clients may be under the impression that the judge made a notable error in their reasoning to exclude the evidence, and if that is the case then there may be sufficient grounds to appeal the ruling.
- Failure to Address Improper Conduct by a Party
This reason for appealing a child custody matter often comes up in circumstances where the court has failed to address misconduct by a party that has had a significant impact or influence on the decision. This can include the opposing party and even their counsel. Some examples of improper conduct may be:
- Parent’s conduct in influencing their child’s testimony
- Parent’s conduct in influencing witness testimony
- Parent and/or counsel’s unwillingness to bring forth evidence that is significant
- Parent and/or counsel destroying evidence for the case
It is generally understood if none of the above have been deliberated within the trial hearing, there may be grounds for an appeal given the severity of the impact it could have on the ruling and on the child.
- Adverse Effects and Misinterpretation of the Law
In some cases where it is believed that the judge misapplied the law to your custody matter and it resulted in adversely affecting the outcome of your custody proceeding, there may also be grounds for appeal. It is, however, important to caution that this appeal implies the judge’s inability to interpret and apply the law properly, which could become a very challenging argument to bring forth. Recent cases like Mullings v. Robertson, 2019 ONCA 979 demonstrate that appeals can have a way of backfiring and costing the appellant much more in cost, time and effort than desired; which is why one must thoroughly assess the strength of the appeal prior to filing it.
- Abuse of Power by the Judge
Finally, though probably the least common, a judge’s misuse or abuse of power can be a ground for appeal. If, for instance, a judge has assigned different weight to certain factors over others in the decision process, then one could argue abuse of power depending on the context and depending on the severity of the discrepancy in weighing them out disproportionately. It is important to note, as discussed previously, that appealing a judge’s decision can be challenging and the implication in these circumstances is that in order to make a successful appeal for abuse of power, you must prove that the judge’s error was obvious and a clear abuse of discretionary power - which is not a simple task.
Exploring Legal Software That Can Help Expedite the Appeal Process
Notwithstanding the challenges, there are some very valid reasons to go ahead with a custody court order appeal based on your client’s needs. It is important to bear in mind that appeals are a very time sensitive process and there are ways to make it less stressful for you and your firm. Software implementation is a helpful solution to alleviating time constraints when it comes to filling out court forms, automating documents, and communicating efficiently within the firm as it pertains to common matters. While some software provide very general document automation and management tools, others have a more specific focus on the area of family law practice and services such as: DivorceMate, Korbitec, Infoware, Family Law Software and Our Family Wizard. To further understand what features these software provide, please feel free to read our previous blog post detailing their respective functions.
Lumose Marketplace: Easily find and compare software for family law firms.
Incorporating new software into your practice can be a research-dense process that you may not have time for. This is why Lumose Marketplace offers a centralized hub of suppliers for law firms, curated and reviewed based on the needs of small law firms specifically. This includes a range of legal software, from court form automation to case management, as well as other types of suppliers like tools to outsource your social media and marketing tasks affordably, court-runners, help with recruiting paralegals, and legal accountants. We list only software and suppliers with price points suitable for solo lawyers and small firms (1-5 fees earners). You can search our listings by practice area or use case to find suppliers in a quick and efficient manner. By comparing and contrasting the different functionalities of each software, we hope to find the best fit for you, your needs and your budget. For more information please visit our marketplace.
