Appealing a Child Custody Case in MontanaMarybeth Sampsel
While appealing a child custody or parenting case in Montana can be just like any other appeal, there are a few important things litigants need to know when considering whether or not to appeal the district court’s decision. Parenting/Child Custody cases can be a bit different than other appeals, even divorce appeals. Here are few things to consider before diving in to an appeal:
1. You’ll Have to Head Back to Mediation.
That’s right, even though you likely attended mediation prior to going to trial, the Montana Supreme Court will make you take another stab at resolving your case. If the parties cannot agree on an appellate mediator within 15 days of filing the Notice of Appeal, the Montana Supreme Court will simply assign you an appellate mediator. You could end up with a mediator on the other end of the state – although the Clerk of the Supreme Court does his best to nominate someone in close proximity to the parties. Your appellate mediation has to be accomplished within 75 days of the filing of the Notice of Appeal. If you settle the case, the appeal is dismissed. If not, you proceed like any other appeal.
2. You’ve Got to Have a Final Order.
Generally speaking, in order to file an appeal with the Montana Supreme Court, you have to have a final judgment or order from the district court. Aside from some extraordinary remedies, the Montana Supreme Court is not there to deal with interim issues. If you have an interim parenting plan you are dissatisfied with, you probably cannot appeal the district court’s decision. Instead, you will have to wait until you get the court’s final parenting plan. If there are still problems, an appeal would be initiated at that point.
3. It Can Get Expensive.
Think your trial was expensive? Wait for an appeal. While the overall cost will probably be less than your district court case, the cost of an appeal can rack up pretty quickly. Your appellate attorney will have to do a huge amount of research and briefing to adequately prepare your case for the Montana Supreme Court. When it comes to parenting and child custody cases, there is often no cap on the amount of money a parent will spend.
4. It Can Take Time.
You have probably already experienced a fairly slow moving district court case. Depending on the county you live in, it may have taken well over a year for your case to get to trial. In recent years, the Montana Supreme Court has made it a point to clear up their backlog and push cases along as quickly as possible. They have truly succeeded and the time cases spend at the Supreme Court is often much shorter than the time spent in district court. Still, litigation just takes time. For litigants it can feel like forever. Plan on your appeal taking at least 6 – 8 months.
5. Its Tough to Do-It-Yourself.
While there are many family law proceedings that parties can handle on their own (particularly if the case is uncontested), an appeal is not really the time to try your hand at lawyering. Because appeals involve a great deal of legal research and briefing, it is important that you find someone with experience to help you. In particular, you want to find a lawyer that has experience with appeals and enjoys doing them. Your trial lawyer might be great, or they may refer you on to someone else. Either way, if you are going to go to the time and expense of appealing, make sure you find someone to help.