By Florida Family Law Appeals Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
AAA Family Law Can Represent You In Family Law Appeals Anywhere In Florida
Reasons to Appeal Parenting Plans for Time Sharing Custody and Support
Florida family law requires parenting plans to be fairly comprehensive, whether a product of a mediation agreement, or a family court ruling or decision. But when two parents are ordered to abide by a child custody and support parenting plan created by a judge, rather than a mediation process, it is virtually certain that neither parent will be completely happy with it. One or both parents may ask their family law attorney “Can I appeal this”?
When I am asked that question, I proceed to ask the three questions about the case shown below. An answer of "yes" to any of them could be a good reason to file an appeal of parenting plan. The more "yes" answers, the more likely that it will result in a reversal of one or more parts of the the family court's ruling.
(1) Did the Trial Judge Misinterpret The Law or the Facts?
When an appeal of a parenting plan for time sharing of custody and support alleges that the family court judge failed to consider a legal requirement or applied the wrong legal analysis, the appellate court applies a de novo standard of review. This means that the appellate court does not grant the trial judge any deference. The judge's analysis is completely reviewed on a clean slate.
In contrast, when an appellant claims that the family court judge reached the wrong conclusion from the evidence, the appellate court asks only whether an abuse of discretion occurred. Here, the appellate court cannot merely disagree with the trial judge’s conclusion. Rather, the trial court's ruling must be so erroneous that it is not supported by substantial evidence. In short, a family judge’s factual conclusion that “could go either way” will never be overturned.
Needless to say, the more legal requirements that are “not considered” or “wrongly applied” by the family court the greater the chances are that the final judgment will be reversed.
(2) Did The Trial judge Consider All Of The Time-Sharing Factors in the Florida Statutes?
I have discussed in Divorce the enumerated factors in Chapter 61.13, Florida Statutes that a family court judge must consider when establishing a temporary or permanent time sharing parenting plan for child custody and support. The chances of a successful appeal depend, in part, on how closely the trial judge looked at these factors.
Several appellate rulings have concluded that the final judgment does not need to contain a recitation of all of the enumerated factors (even though many family court judges do this as a matter of preference). However, it must be evident, either in the record or the final judgment, that the trial judge at least considered the factors in Chapter 61.13 when establishing the time sharing parenting plan. As a rule of thumb, if your final judgment's time-sharing plan does not allude to the Chapter 61.13 factors, an appeal may be in order.
(3) Did The Trial Judge Delegate The Ultimate Custody Decision To a Third-Party?
This happens more often than most people imagine. In fact, I have worked on an appeal of a child custody time-sharing plan that essentially let a parenting counselor decide how much time a daughter should spend with her father.
Fortunately for my client, all of the District Courts of Appeal have rejected this practice. Their opinions universally state that trial judges, while they may consider expert opinions, cannot “punt” to these appointed experts to make a final decision about time-sharing.
The same principle applies to a trial judge deferring to the wishes of a teenage child. Again, a child’s preference (assuming he or she is sufficiently mature) may be considered, but cannot be the deciding factor in the final establishment of a parenting plan. In 2015 my firm successfully appealed a trial court’s decision that did just that.
The Unenviable Job of Family Court Judges in Child Custody Cases
Even though I, as a family law appeals attorney, sometimes criticize family court judges, I acknowledge that they often have to perform the unenviable task of formulating a detailed parenting plan for two combative and uncooperative parents.
How to Get Help In Child Custody and Support Appeals
If you have any questions about appealing a child custody and support decision of a family court, I encourage you to call AAA Family Law at (407) 260-6001 and schedule an initial consultation by phone or at our office in Altamonte Springs, Florida, just north of Winter Park.
At the consultation I will review the trial court's final judgment and listen to the reasons why you would like to appeal your parenting plan Then I will let you know my evaluation of its chances of success.
If you decide to proceed with the appeal, I will quote you a fixed attorney retainer fee, not an hourly rate whose total is unpredictable. You will know the total cost of your case before you sign a contract or make any payment.
Our retainer fees for family law appeals of final orders in Florida range between $3,600 and $6,000 depending on their level of complexity. For non-final orders they are between $2,400 and $4,800. For more information about your costs of our family law cases, please read Family Lawyer Retainer Fees for additional information on the ranges of retainer fees on all other types of cases and on court costs.
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