As a Chicago family law attorney, I am often asked by clients if they can appeal a family law court order. You have a right to appeal a final decision from the family law court and you also may have a right to appeal a decision from a family law court that is not a final decision or one that is final but does not dispose of all of the issues involved.
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The Process to Appeal a Family Law Court Order
Once you have a decision from the court that resolves all issues and you want to have a higher court review the decision you can do that through the appeal process. There is a time limit that must be strictly adhered to as there is very little leeway if any when specific dates are not met. It is important to remember that when you appeal your case to the appellate court, it is not another “bite of the apple” or chance to have your case heard all over again in an attempt to gain a different decision. The purpose of appealing to the appellate court is to review the underlying case exactly as it was heard and decided by the trial judge.
Appellate Court and the Standard of Review
There are different standards the appellate court uses to review cases depending upon the type of case. This is known as the “standard of review”. In most family law cases where the trial court has discretion when they make decisions and enter orders, the standard of review applied is “abuse of discretion”. This means that the appellate court will carefully review the pleadings, the evidence used at the trial, and the transcripts of the testimony and made a determination as to whether or not the family law court abused its discretion in deciding your case.
Was There an Abuse of Discretion by the Family Court?
In other words, the appellate court does not look at everything and make a new determination and maybe the appellate court would make a different decision if they were the trier of fact (trial judge). That is not their role in a family law appeal.
The role of the appellate court in appealing a family law court order is to make sure that the trial judge’s decision was one that could have been made based upon the pleadings, evidence, and testimony. The appellate court does not determine whether it would have made the same decision. They make a determination that the decision could have been made so there is no abuse of discretion. If there is no evidence the court abused its discretion the trial court ruling will stand. This is when the appellate court affirms the trial court’s decision.
When the Family Court Abused Its Discretion
In the event the appellate court finds that after review of the pleadings, evidence and testimony the trial court abused its discretion and should not have entered the ruling that it did, the appellate court will do one of two things, they will either:
- remand the case back to the trial court with specific directions on what needs to be done such as further hearings on one or more issues, OR
- reverse the decision outright which does not require the case to go back to the trial court for further hearing.
In summary, the standard of review is the amount of deference or leeway the appellate court will give to the trial judge’s order that is on appeal.
The Illinois Marriage and Dissolution of Marriage Act gives the trial court a lot of deference in making decisions since they have firsthand knowledge at the trial and can determine the credibility of the witnesses. Credibility is important in family law cases since many of the trials come down to “he-said / she-said” cases.
If the trial court enters a Judgment that states one, both or neither of the parties were credible witnesses, the appellate court weighs that very heavily. However, if the family law court order on appeal is a question of law and not deference the appellate court will review the pleadings, evidence, and testimony as though it is considering the case for the first time. This allows the appellate court to substitute its own judgment about the application of the law in the case and make its own determination. This is not often the case in family law matters but it does happen.
Thinking of Appealing a Family Law Court Order?
Talk to an Experienced Family Law Attorney Right Away
When it comes to appealing a court order or judgment it is important to be aware of the thirty (30) day time limit to file an appeal. As such, be sure to talk to an experienced family law attorney right away. If you are in the Chicago area contact the family law attorneys at Anderson & Boback to discuss the possibility of appealing the family law court order in your case.