The Right to an Appeal a Temporary Custody Order

A fundamental concept in the trial court process is the exercise of the appellate process. In Massachusetts, when a party has a proceeding before the trial court, in this case before the Juvenile Court, it may be possible to appeal a decision made by a judge. For example, if you are a parent in a care and protection case (a case before a Juvenile court in Massachusetts where the Department of Children and Family Services (DCF) alleges that abuse or neglect of a child in your care has occurred, it is very common for the Juvenile court to award temporary custody to DCF. Temporary custody usually translates to placement in a foster home or residential foster home.

It may be possible to appeal the decision of a Juvenile Court judge to place your child or children in the care of DCF.

Why Would you Want to Appeal a Temporary Custody Order?

When you or your attorney believes that a judgment entered by a Juvenile Court Justice is wrong or misplaced, you may be able to appeal that decision and overturn it. It is also possible to overturn temporary custody orders when those orders are what is known as interlocutory orders, that is, orders that occur in the midst of a proceeding which are not the final orders for that proceeding. A good example of an interlocutory order in the Juvenile Court setting would be where children are ordered into the care of DCF, e.g. into a foster home, for a temporary period. Such orders may be appealed in many cases.

How is an Appeal in Juvenile Court Structured?

Your attorney will draft a brief which puts forth your legal arguments. As a general rule of thumb, the legal arguments raised in the appeal to the Massachusetts Juvenile Court must be based on the arguments and evidence which were raised in the original lower court proceeding. In other words, it is not possible to introduce new evidence, new witnesses or new arguments.

What Evidence Does the Appellate Court Use to Make a Ruling?

The Massachusetts Appellate court will use the evidence that was produced before the lower court, that is, the Juvenile court and will make a ruling on your appeal based on the following:

• whether an error was made by the trial court; and
• whether that error altered the judgment.

What is important to note about the appeals process in the Juvenile Court setting, in child welfare cases, is that an appeals court will not overturn a judgment made by a Juvenile Court judge where that judge used facts in evidence at the time of the ruling unless the appeals court could find that no rational person would make the ruling because the evidence against that ruling was overwhelming. The burden that the appellant must overcome in filing an appeal in Massachusetts is very high, and very difficult to meet.

In a Temporary Custody Case, Should I Appeal?

A person losing custody of a child in a Juvenile Court in Massachusetts will, in many cases, want to fight to retain custody of their children. It may be possible to appeal the decision of a lower Juvenile Court that awards custody of your children to a foster home in Massachusetts, however, as previously mentioned the burden that must be overcome is very high. At a minimum, to have any possibility of winning an appeal there must be some clear error that has occurred in the arriving at a judgment by the Juvenile Court judge. Or, the judge in the case must have made a decision on no evidence at all or on evidence that no rational person would have made such a decision on.

If you believe your case, where temporary custody of your children is involved, has been decided by a Juvenile Court judge in error, please contact our offices at 978-273-8337. The circumstances of your case will be investigated and after a thorough assessment of your situation an evaluation of your likelihood of success will be provided to you.

Appeal Stages

The first step when considering an appeal is to provide the court and all parties to the case notice of an intention to appeal by filing with the court (and serving to the parties) a notice of appeal. Next, arrangements must be made with the trial court to transcribe the testimony of the previous proceeding. An appeal is then filed with the appellate court, with a brief and record appendix prepared, followed by an oral argument to be presented before the court. Lastly, the appellate court will provide a decision or ruling on the appeal.

Timing of an Appeal of Temporary Custody

Generally, in a Massachusetts Juvenile Court you have 30 days from the from the entry of judgment or of final adjudication of the case entered on the docket to file an appeal. Our attorney will handle this aspect of your appeal, if this is the best course of action, for you.

It is clear that appealing a temporary custody order in a child welfare case in Massachusetts is a challenging endeavor. There are many aspects to consider prior to filing an appeal. If an appeal is appropriate, it can mean overturning the previous decision made by the lower court. If the previous ruling happens to be an award to DCF of the custody of your children there could be no more important ruling for your family. Our office will evaluation your present circumstances and provide you with a clear picture of the likelihood of success or failure based upon those circumstances.

DISCLAIMER: The information provided in the pages and posts of this website are for general informational purposes only. The information presented on this site is not legal advice, and no attorney-client relationship is formed by the use of this site