How do I appeal a custody decision in NC?

Nov

22

2010

I was sued by my in-laws for custody of my children. The judge ruled in their favor, but I believe she erred in her ruling, trampling my constitutionally protected status as a parent, ignoring Due Process, allowed irrelevant testimony, and applied best interest test without clear and concise evidence that I had acted inconsistent with my protected status and/or that I was unfit. My lawyer was horrible, and I can’t afford to hire a new one. So, I’ll be filing Pro Se. How can I do this? Any advice on how to do this, file a briefing? Will I have to give an oral argument?

Answer #1

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An appeal is when you ask a higher court to review a decision by a judge in a lower court. You cannot introduce new evidence when you appeal your case to a higher court. The higher court does not hold a new trial or hear new evidence but simply reviews the lower court’s decision to ensure no errors were made. Usually, you only have a short time, between 10 and 30 days, to file an appeal after the judge issues the order or decision you want to appeal. The court decides for the best interests of the children being served by the judgment based on all the evidence presented to them. It is well within a judge’s discretion to make that assessment. NC Law clearly upholds the biological parents when possible. You have to prove the grandparents unfit or prove they acted in a manner inconsistent with your constitutionally protected status as a parent.

If you believe the court made a substantive error when making a custody determination, you will need to prepare a petition and brief that outline your reasons for appealing the decision. Prepare an appellate petition that details why you are appealing and lists the errors that the lower court made. File your appellate petition with the court and serve it on the opposing party. The court will review the petition and determine whether it will hear your case. Once the court has agreed to hear your child custody appeal, you will need to prepare a brief that explains your reasons for believing that the lower court erred in its decision. You will need to cite the lower court’s rules, along with case law and the facts surrounding the initial custody hearing.

Please refer http://www.aoc.state.nc.us/www/public/html/pdf/therules.pdf for North Carolina Rules of Appellate Procedure.
Also refer Notice of Appeal form and Certificate of Service form:
http://www.nccourts.org/forms/Documents/357.pdf

About oral argument, although some cases are decided on the basis of written briefs alone, many cases are selected for an oral argument before the court. Oral argument is a structured presentation by the party to the court and a discussion between the party/lawyers and the panel of judges which focuses on the legal principles in dispute. Oral argument is optional and can be waived. As a Pro se in presence of an experienced attorney, if you are not a good speaker, oral argument can decrease your chances of winning.

It is highly recommended to appeal only based on error of application of law, and abuse of discretionary power. As it’s very difficult to get a ruling like this overturned without some obvious error in application of the law. You can argue all you want that the judge was wrong and should have believed you, but the judge is entirely within his rights to believe whoever is more credible. Unless you can find an error in the application of the law, an appeal is probably a waste of time.

If applicable you might also want to consider, requesting a modification of the court order, instead of appealing. To request a modification of a court order, you will likely need to show that there has been a substantial change in circumstances that has happened since the order was issued. You will need to go back to the court where your order was issued and file modification forms. There will probably be a new hearing on the issue and a modification in judgment might be granted in your favor.

Good Luck!

Answers Answered By: ProSePro [6135 Red Star Level]

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