Legal Question in Family Law in Maryland

Re: Appeals Question )s_

Appeals occur where there is a basis to set aside the decision of the Circuit Court.

The first appeal is to the Court of Special Appeals which could then be appealed to the Court of Appeals.

An appeal is not the same as a Circuit Court trial in that an appeal is focused on issues of error with the decision of the lower court (in this case the Circuit Court).

An appeal for sake of re-trial of the original case should never be granted. Matters for appeal include erroneouos decisions such as where the facts and the judicial decision are inconsistent with each other or

the law was not applied correctly to the facts. The key point here is that an appeal in not a new trial but focuses on some deficiency that is alleged to have occurred during the prior trial.

The process of an appeal is lengthy as it involves preparation of briefs that require time for response. The appeal process is lengthy and costly.

An appeal is distinguished from a modification. A modification is based on a change in circumstance. Since the Circuit Court retains continuing jurisdiction, a hearing for modification is heard there.

In order to gain access to the court to argue for a modification, the party moving for the modification bears the burden to show there is a material change in circumstance which is measured by various standards that apply to the situation. The

basis for a material change is factual in nature and is measured against these various legal standards. Modification hearings are not appeals but are essentially a hearing that extends from the first trial and one party argues that the original judgment should be changed since

facts have "materially changed". Once proving a material change, the party seeking a modification must then show that it is in the best interest of the child to grant a modification. The best interest test is also fact based.

These matters generally require the assistance of counsel so that relevant facts are brought out during the trial or modification hearing. Appeals are even more complex in that they are often based solely within legal standards rather than being bound largely in fact.

Hope this helps.

Re: Appeals Question )s_

I am assuming you are asking about an appeal of a custody decision to the Court of Special Appeals.It can take 12 to18 months before a hearing in that court, partly because of the court's crowded docket and partly because the process requires time for the appellant to prepare a written brief stating the argument for a reversal of the Circuit Court decision, then for the appellee (the defendant in the appeal) preparing a written response stating a legal argument why the appellant is wrong. Then the judges read the briefs and finally hear oral argument by the attorneys. In one sense it can't go on and on after that. Unless the Court of Appeals agrees to hear a second appeal of the Court of Special Appeals decision, the decision is final. The court always has jurisdiction,however, until the child reaches the age of 18, to hear petitions to change, or modify, the original decision if there is a change of circumstance which might be a reason to change custody. Two examples would be if the custodial parent marries a convicted child abuser or becomes ill and unable to care for the child. Three things whichare never truly final in a divorce case are issues of custody, visitation and child support, because changes of circumstance can be a reason to change any of them.