By Florida Child Custody and Support Appeals Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2005
AAA Family Law Can Represent You In Family Law Appeals Anywhere In Florida
Reasons Why Parenting Plans Are Appealed
Florida family law requires parenting plans, whether a product of an agreement or a trial ruling, to be fairly comprehensive. But when two parents are ordered to abide by a 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 we appeal this”? When I am asked that question, I proceed to ask these three questions about the case:
Did the Trial Judge Misinterpret The Law or the Facts?
When a custody appeal alleges that the family law 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 law 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 decision must be so erroneous that it is not supported by substantial evidence. In short, a trial 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 trial court the greater the chances are that the final judgment will be reversed.
Did The Trial judge Consider All Of The Time-Sharing Factors Contained in Chapter 61.13, Florida Statues?
I have discussed in Divorce the enumerated factors in Chapter 61.13, Florida Statutes that a family law judge must consider when establishing a temporary or permanent parenting plan for child custody and support (known as a time sharing plan). The chances of a successful appeal depend, in part, on how closely the trial judge looked at these factors.
Several appellate decisions have concluded that the final judgment does not need to contain a recitation of all of the factors (even though many family law 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 61.13 factors when establishing the time sharing parenting plan. As a rule of thumb, if your final judgment establishes time-sharing, but does not allude to the Chapter 61.13 factors, an appeal may be in order.
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 order 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 Trial Judges in Child Custody Cases
Even though I, as a family law attorney, sometimes criticize family law trial 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 Appeals
If you have any questions about appealing a trial court’s custody decision, I encourage you to call AAA Family Law at 407-260-6001 and schedule a free thirty-minute 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 child custody and support case. Then I will let you know my evaluation of the chances of success of the appeal
If you decide to proceed with the child custody 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 (by stages, if applicable) before you sign a contract or make any payment.
Our retainer fees for family law appeals of final orders in Florida range between $3,000 and $5,000 depending on their level of complexity. For non-final orders they are between $2,000 and $4,000.
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