Family Law Appeals

After a case has gone to trial or a hearing and an order is issued, there may be issues that can be reviewed by a higher court.

An appeal happens after the case has gone to trial and a court has issued its final ruling (sometimes an appeal can happen after a decision in the case that is not the final decision, but that is not common in family law cases). Appeals address primarily legal issues, factual issues are rarely reviewed and even more rarely overturned on appealed as a judge must have abused her/his discretion (the highest threshold).

Many attorneys who do trial work do not do appeals as it is a different type of practice, different courts, and different rules. Sometimes attorneys will refer to their clients to an appellate attorney and the appellate attorney joins the case to do the appeal, while still working with the trial attorney. Most often, a trial attorney will refer their client to an appellate attorney and the client will pursue the possibility of appeal with the appellate attorney.

Appeals are an uphill battle. According to one panoramic review of appeals, the State High Courts (like Washington’s Supreme Court) are restrained in their reversal of trial court opinions – typically much less than half and in some states, fewer than four percent of cases are reversed. As a side note, this review did not discuss Washington State.

If appeals are hard to win, why do people appeal? Laws (statutes) are limited in their ability to address every situation that can exist. Sometimes a trial court will make an interpretation of the law in the absence of a law or appellate court decision addressing the specific question. In cases where the law is not clearly established, an appeal may be appropriate.

Family law is a particular area where the law or the mixture of law and facts, could have a meaningful impact on the property distribution or the residential time or limiting factors in a parenting plans. Several important areas of family law in Washington State are as a result of the common law process (i.e., when a law doesn’t address the specific issue and courts use their equitable power to fill the gaps). For example, in Washington, we have de facto parents, that is parents who are not biological or adoptive parents, but they are considered a “real” parent or de facto parent because the relationship they have with the child(ren) is strong enough that has reached the level of being viewed by the courts as a legal parent. We also have a Committed Intimate Relationship Doctrine, formerly called a Meretricious Relationship Doctrine. It is perhaps the closest thing we have in Washington to what non-lawyers think of as a common-law marriage. It is an equitable doctrine that provides protection for couples who are in committed intimate relationships that are similar, but not the same as the protections and responsibilities that exist through marriage.

If you are an attorney who is interested in assistance on an appeal that you want to handle for your client, or a person with a family law decision you believe should be appealed, please contact JELS.