In most cases, one (1) party “loses” the custody arrangement they sought in their divorce, paternity case, or modification matter. As most litigants know, there is the right to appeal any adverse ruling under Indiana Rule of Appellate Procedure 9(A)(1). This includes any final order as to all custody issues pending before any Indiana trial court. This appeal is to the Court of Appeals of Indiana. This blog explores and explains how to appeal an adverse child custody ruling.
The threshold matter with any appeal, including a child custody ruling, is that it must be appealed within thirty (30) days of the ruling. Indiana Rule of Appellate Procedure 9(A)(1). Failure to perfect the appeal within this time forfeits the appeal under Indiana Rule of Appellate Procedure 9(A)(5). This thirty (30) day period does not include the first day the order was issued as this is not a whole day, nor the last day if it is a weekend or court holiday under Indiana Rule of Appellate Procedure 25. The appeal is perfected by timely filing the Notice of Appeal under Indiana Rule of Appellate Procedure 9 (A)(1).
The Notice of Appeal is the key document to moving forward with the appeal of the adverse judgment and consideration of potential errors by the Court of Appeals of Indiana under Indiana Rule of Appellate Procedure 9(F). The Notice of Appeal is the “instruction sheet/guide” to the appeal. Once filed, it triggers the Clerk to file the Clerk’s record. Indiana Rule of Appellate Procedure 9(F)(4). The Clerk has thirty (30) days to file the Clerk’s record. Indiana Rule of Appellate Procedure 10(B).
In addition, the Notice of Appeal. it directs the trial court reporter as to which hearing dates to transcribe. Indiana Rule of Appellate Procedure 9(F)(5). The trial court reporter has forty-five (45) days to prepare the transcripts. Indiana Rule of Appellate Procedure 11(B). The transcript and exhibits are the materials the Court of Appeals of Indiana primarily relies upon in considering the brief, along with the appendices the Appellant files.
Once the transcript is filed, the appellant has thirty (30) days to research, write and file the Appellant’s Brief. Indiana Rule of Appellate Procedure 45(B). Because custody decision are so important to get right, extensions of time to file a brief are granted only in extraordinary circumstances. Indiana Rule of Appellate Procedure 21(A). After the Appellant’s Brief is filed, the Appellee has thirty (30) days to file the Appellee’s Brief. Indiana Rule of Appellate Procedure 45(B). Because the Appellate brought the appeal alleging error, the Appellate can file a Reply Brief within fifteen (15) days. Indiana Rule of Appellate Procedure 45(B).
After the briefing is completed, the Clerk of the Court of Appeals of Indiana transmits the briefs to the judges who will be deciding the case. These are three (3) randomly assigned judges from the Court of Appeals of Indiana (there are 15 judges total). These judges are called the writing panel because they will be writing the decision to affirm, and reverse in part, or reverse the trial court’s decision in the case before it (and the various materials submitted with the brief).
The decisions of the Court of Appeals of Indiana may be memorandum decisions or published decisions. Indiana Rule of Appellate Procedure 65(A). A published decision means that the case had some point of law important enough to “publish” it so it may be relied upon by other appellants (and trial attorneys and judges) as the current state of the law in the future.
If an Appellate/Appellee does not obtain relief they seek on appeal, he or she has thirty (30) days to ask the Court of Appeals of Indiana to reconsider its decision. Indiana Rule of Appellate Procedure 54(B). If rehearing is not sought, then the Appellate or Appellee has forty-five (45) days to ask the Indiana Supreme Court to grant transfer and decide the case. Indiana Rule of Appellate Procedure 57(C)(1). This is totally discretionary, and after briefing, the Indiana Supreme Court decides if it will grant transfer of the case and decide the matter.
Ultimately, unless the Supreme Court grants transfer, the decision of the Court of Appeals of Indiana will stand and decide the case; it will be binding and enforceable once certified back to the trial court under Indiana Rule of Appellate Procedure 65(E). Thus, an party who does not prevail in the trial court in their child custody case has the right to appeal. The key is the appeal is timely perfected. This blog was written by attorneys at Ciyou & Associates, P.C. who handle appeals of all final judgments. This blog is written for general educational purposes. The blog is not to be relied upon for any legal matter or issue. This blog is not legal advice. The blog is an advertisement.