Your Roadmap through the Family Law Appeals Process

Is there a feeling more nerve-wracking than the one you get waiting for a family court judge to issue a decision? After all, these rulings can alter the course of you and your loved ones lives. The court has the power to determine so many aspects of people’s lives, from divorce settlements and alimony to custody arrangements and child support.

A surprise adverse ruling can hit like a sucker punch — and it can hurt for a lot longer. That’s why it’s important to know which family court decisions you can appeal and what you should do to get started.

Here is your roadmap through the family law appeals process.

In This Guide:

• What is an Appeal?
• The Role of Appeals in Family Law
• Why Appeals are Common in Family Law Cases
• Looking at Important Appeals Cases
• The Process of Filing an Appeal in Family Law Cases
• The Importance of Having Legal Representation During Your Appeal
• The Cost and Implications of Filing an Appeal
• Alternatives to a Family Law Appeal

What is an Appeal? 

An appeal is a legal process that allows a higher court to scrutinize a lower court’s decision. In the context of family law, an appeal can be used to uncover potential legal errors or instances of judicial misconduct by magistrates or judges.

Usually, only the losing party — the “aggrieved” — at the trial court level can appeal. However, in family law cases, either party might appeal a decision due to the numerous issues involved. For example, one spouse might appeal an unfavorable spousal maintenance order, while the other appeals a questionable division of assets. Either or each can bring an appeal forward if they believe the court erred in applying the law or if the judicial officer abused its discretion in issuing final orders.

You can appeal district court or magistrate rulings on the following types of matters:

• Parenting Time
• Child Support
• Spousal Maintenance 
• Decision Making Authority
• Property Division

A Different Process 

An appellate hearing is vastly different from a trial. Indeed, the facts of your specific case are not at issue during the appeals process. An appeal only examines whether the trial court accurately and fairly applied the law based on the facts presented. It is a review, not a re-do. This means:

• No new evidence or witness testimony can be presented
• No arguments are presented before a jury of your peers

Evidence that was known or existed at the time of the hearing but was not a part of the record cannot be introduced and will not be a consideration during the appeal.  Except for very limited circumstances, new or helpful facts that emerge after the final orders hearing cannot be presented on appeal.

Appellate judges focus on reviewing the lower court’s decision based on the facts that were available at the time of the original hearing.

Who Hears an Appeal? 

The answer to this question depends on who issued the original ruling. In Colorado, family law matters decided by a magistrate must first go to a district court judge for a review of the orders, thereafter those orders may be taken up to the Colorado Court of Appeals. Final orders issued by a judge may proceed directly to the Colorado Court of Appeals.

Either way, you must have a final written and signed order in place in order to initiate an appeal.

How Soon Should I File an Appeal?

There are strict time limits on when you can file an appeal. The time frame is different depending on who issued the final orders.

• If a District Judge issued the order, you have only 49 days to file the notice of appeal. Note: The clock starts ticking on the day you receive the final written orders from the court.
• If a Magistrate issued the order, you should file a request for review by a district court judge within 14 to 21 days of receiving the written order. Again, the countdown begins when you receive the magistrate’s written Note that your timeline regarding any requested review of a magistrate’s order depends on whether the parties were present at the time the order was entered or not.

Magistrates are judicial officers who can decide cases and administer the law on a limited basis. They do not have the authority to act on a motion to reconsider their decision, according to the Colorado Rules for Magistrates, Rule 7(a).

The Role of Appeals in Family Law 

Family law appeals are almost as important as the actual statutes (laws) when it comes to shaping the legal landscape. Appeals help establish case law, correct judicial errors, and, most importantly, hold lower courts accountable.

During the appeal process, the higher court:

• examines the legal issues presented in the case,
• reviews the lower court’s decision, and
• assesses whether any errors of law (interpretation or application) or abuse of discretion in applying the law were made.

Afterward, the appellate court’s decision becomes a binding legal precedent for lower courts to follow in similar cases.

Establishing, Affirming, and Clarifying Case Law

Family court appeals play a crucial role in establishing or clarifying case law. Here’s how:

1. Interpret and clarify: Appeals help higher courts interpret and clarify existing laws. They explain legal principles and rules applicable to specific situations or issues in family law cases.
2. Resolve ambiguities: Appeals sort out complex or unclear legal issues through authoritative guidance on how the law should be applied in particular circumstances.
3. Plug gaps in the law: Appeals establish new legal principles or refine existing ones to address emerging issues or changing social dynamics.
4. Overturn or affirm precedent: Appeals can overturn or affirm existing legal precedents and provide guidance and consistency in the application of family law.
5. Influence future decisions: Appeals decisions serve as persuasive precedents for future cases. These rulings carry significant weight and influence the decisions of lower courts.

Holding Lower Courts Accountable 

Scrutiny maintains integrity. The appeals process is meant to check judges’ actions. Judicial bias is deterred when rulings are reviewed for errors, procedural irregularities, or misapplication of the law.

Yet, appellate judges usually respect the trial courts’ discretion. Judges in different counties overseeing similar divorce cases can issue different orders. Judges are allowed discretion as long as they apply the law correctly and fairly.

Why Appeals are Common in Family Law Cases

Deciding how to split lives or allocate time with children is not always suited for strict, cookie-cutter rulings. When deeply personal issues collide with complex family law, cases can get messy, leading to decisions that get challenged.

Common Factors that Lead to Appeals 

Emotional Involvement 

Family law consists of personal matters like custody, divorce, alimony, and property division. Parties can challenge unfavorable rulings to seek a different outcome or reconsideration.

Complexity of Family Law 

The intricacies and nuances of child welfare, adoption, and domestic violence can lead to challenging lower courts. Appeals seek clarity and consistency from complex issues and conflicting precedents.

A Judge’s Discretion 

Family law statutes give judges a lot of room to determine the best interests of the child and other life-altering matters, such as alimony. Differing interpretations and judgments can be seen as unfair or inconsistent. Appeals consider potential abuses of discretion or errors made by the judge.

Procedural Errors 

Family law requires strict adherence to rules. Careless behavior, such as mishandling evidence, improper admission/exclusion, or due process violations, can lead to appeals. Parties challenge rulings on procedural grounds or to exclude influential evidence.

A Changing Legal Landscape 

Family law adapts to societal norms, legislative changes, and evolving case law. Lower courts sometimes struggle to stay current. Appeals shape and refine family law by addressing novel issues, reevaluating precedents, and adapting to social dynamics.

What Family Law Rulings Can You Appeal?

Family court matters that can be appealed involve final orders surrounding:

• Parenting Time
• Decision-making authority
• Child Support
• Property & Debt Division
• Spousal Maintenance

However, not all decisions are appealable. In fact, you cannot file an appeal just because your case involves one of the matters listed above. Appellate courts cannot reverse lower courts over a difference of opinion on facts. They will not.

The trial court must have:

• abused its discretion
• committed a form of judicial error or bias
• misapplied the law to your case

Preserving a Claim 

In order for the appellate court to review your appeal, your attorney must have brought up the procedural or judicial error during the initial hearing or trial. In legal terms, this is called “preserving the issue.”

For example: You and your attorney discover an error while reviewing the case file. However, your attorney never preserved the error by addressing it at trial. This means you cannot bring it up on appeal. It’s gone.

Looking at Important Appeals Cases 

Appeals courts play a crucial role in clarifying and interpreting laws, particularly in the context of family law. The laws as-written are not necessarily hard to interpret. However, applying them to complex family cases can be tricky.

Sometimes, family law courts assume better alternatives that do not exist in some cases. The appeals court then must choose the better of two ‘bad’ options. Sometimes, more than one provision or statute can apply to a matter, and the court must decide which one prevails.

Let’s look at a few real-life Colorado appeals court cases.

In Re Marriage of McGee (1980)

Question: Can a lower court award full custody to a parent who lives overseas? 

A father (Scott McGee) was awarded custody of his child but later agreed with the mother to set aside the order. The lower court then granted permanent custody to the mother (Esther McGee), who lived in a foreign country. The court also limited the father’s visitation to two weeks per year.

The father challenged the order on appeal. The appellate court upheld the custody decision, citing the child’s stronger relationship with the mother.

“The best interest of the child must predominate in any custody determination. Section 14-10-124, C.R.S. 1973. And the policy of the law in Colorado is to permit removal of a child from the jurisdiction where it will serve the well-being and future interests of the child.” — In re McGee, 44 Colo. App. 330, 613 P.2d 348 (1980).

However, the court reversed the visitation order, finding it unreasonable and not adequately justified in the record. The father was granted more frequent visitation with the child.

In Re Marriage of Krejci (2013) 

Question: Who gets the house if one spouse’s parent paid off most of the mortgage?

In this case, the court had to determine which provision of a statute applied to dividing property after a divorce.

Emily and John Krejci were jointly responsible for their marital house, but Emily’s mother had paid off the remaining mortgage amount. During divorce proceedings, John claimed the payment was a “gift to the marriage,” while Emily and her mother classified it as an “advance” on her inheritance.

Under C.R.S. 14-10-113 (2) (a), all property obtained by either spouse after marriage is “marital property” — unless it’s a specific gift or inheritance intended for just one spouse.

Marital Gift or Inheritance? 

The lower court ruled that the house was Emily’s separate property, as most of the mortgage was paid off by inheritance money intended only for her.

John appealed, and the higher court remanded the matter back to the trial court. Appellate judges were not convinced the lower court had considered whether the payment was an inheritance or a gift, writing:

“We conclude that a gift by a third-party donor during the marriage, which increases the value of a jointly-titled asset of the spouses, is presumably a gift to the marriage, and that this presumption can only be rebutted by clear and convincing evidence. Therefore, because the trial court did not apply this presumption, further findings are required.” — In re Marriage of Krejci (Colo. App., 2013)

In Re Marriage of Yates (2006) 

Question: Can a parent who has been convicted of child abuse be awarded “full custody?”

During a heated altercation, the wife threatened the husband with a knife in front of their child. This resulted in charges against the wife of felony menacing and misdemeanor child abuse.

The husband used the child abuse conviction against the mother to gain more favorable temporary orders. However, during the final orders hearing, a court-appointed special advocate recommended the child be placed with the mother. Both the advocate and a parental responsibilities evaluator (PRE) determined that:

• the husband had likely committed spousal abuse in the marriage,
• the wife had been the child’s primary caregiver, and
• the wife provided a beneficial and nurturing environment for their child.

Husband Appeals 

The Court of Appeals upheld the trial court’s decision that — despite the mother’s misdemeanor child abuse conviction — the child should remain with her. All facts presented at trial satisfied the appeals court that the “Best Interest of the Child” standard had been followed.

“Allocation of parental responsibilities to wife was proper where wife, despite being previously convicted of child abuse, had since received and benefitted from counseling, and there was no suggestion of prospective child abuse; however, there was a greater concern about husband’s parenting skills.” —  In re Yates, 148 P.3d 304 (Colo. App. 2006).

In re Marriage of Herold (2021) 

Question: Can one owe retroactive maintenance (“alimony”) for a period when both spouses were still living together?

While married, the husband and wife in this case enjoyed a comfortable lifestyle. This included international travel, luxury cars, shopping at designer stores, and fine dining. However, after the wife filed for divorce, the husband’s monthly income came to $50,000 and hers to less than $4,000. Husband and wife continued to live in the same home for a year after the divorce filing.

The wife requested retroactive spousal maintenance at the temporary orders hearing. She claimed an inability to meet her financial needs despite the husband paying all of the shared living expenses. Beyond that, the husband provided little support. This caused the wife to liquidate retirement savings and take a second job to pay for health, dental, and vision care. The husband’s high standard of living remained unchanged.

Ordered to Pay 

The district court sympathized with the wife. It awarded her $12,000 per month in retroactive maintenance for the year she’d continued living with her estranged husband. This immediately put him $144,000 in debt to her. So he appealed.

Reversed on Appeal 

The appellate judges affirmed the lower court’s authority to award retroactive temporary maintenance. However, they questioned how the court arrived at $12,000 per month — the same amount the wife had requested.

Colorado Revised Statute 14-10-114 sets guidelines for determining the amount and duration of maintenance. The appellate judges ruled the court had not exercised due diligence following the statutory guide. Further, the lower court hadn’t considered the husband’s payment of shared expenses and debts during the year the spouses lived together. For these reasons, the appellate court reversed the maintenance order and remanded the case.

“In the end, the court has discretion to enter a fair and equitable maintenance award, but it must make specific written or oral findings in support of the amount and term of maintenance awarded.” — In re Marriage of Herold (Colo. App., 2021)

In Summation 

Appeals courts are a mechanism for ensuring that a lower court has properly applied the law in a difficult matter. This gives appellate judges the power to create legal precedent to guide future decisions in similar cases.

The Process of Filing an Appeal in Family Law Cases 

The first step to initiating a family law appeal is determining if you’re eligible. This is a discussion you should have with your attorney. Otherwise, you could waste a lot of time and money pursuing an appeal that never gets heard.

As you go over the facts of your case, ask yourself the following questions:

• Has the court rendered a complete decision on your family law matter?
• Were you provided with a final written order or orders by the court?
• Do you have legal grounds to appeal the order?

If you answered yes to the first two questions, you’re on track to an appeal. However, that last question is the big one: do you have legal grounds to file your appeal?

Grounds for an Appeal 

Do you strenuously disagree with a recent ruling in your family law case? If so, then you have the motivation to ask for an appeal. However, you need grounds. In other words, the court needs a compelling reason to scrutinize the details of your case.

There are a number of legal grounds to appeal a family court order, and they can include issues such as:

• the other party misrepresented the facts of the case
• the court misunderstood the facts of your case
• the court reached its decision by mistake
• your case was affected by a material error in, or misapplication of, the law
• the judge abused his or her discretion in your case

An error of law is often the strongest grounds for an appeal. It means the judge applied the wrong rule or legal standard to the facts of your case. This happens when the court ignores statutes or case law that should have been applied.

For example: Prior cases have set clear precedent which should apply to your issue. However, the trial judge makes an unexpected, opposite ruling.

How Do You Know If You Should Appeal? 

If your court’s final orders don’t align with the facts you presented, it might be worth considering an appeal. However, let’s face it: determining the likelihood of success on appeal is anything but easy. Beyond the general sense of unfairness or judicial inconsistency, it’s hard to gauge your odds accurately. That’s where an experienced family law attorney can assist.

A family law attorney can assess your case, evaluate the prospects of a successful appeal, and provide guidance. If you believe a court order is unjust, consult with a family law attorney.

Don’t let an unfavorable family court order go unchallenged. Discuss your concerns with a family law attorney to explore your options and assess the chances of a successful appeal.

Preparing the Notice of Appeal 

If you understand nothing else about filing an appeal, understand this: it is paperwork intensive and the deadlines are crucial.

Any family law attorney with experience in appeals already knows this and will stay on top of the process.

Your process begins with filing a Notice of Appeal. These documents alert both the district and appellate courts of your desire for review. Of course, you must take care to file the notice with:

•   the district court that heard your case,
•   the appellate court that will review it, and
•   with the opposing party you’re filing against, called the “respondent” or the “appellee.”

Steps for Filing Your Appeal 

One: Serve the respondent with a Notice of Appeal. It should include:

• your name,
• the order you want reviewed,
• the date of the order, and
• the name of the court you’re appealing to.

Two: Bring two copies of the Notice of Appeal with proof of service to the Clerk of the Family Court. Give copies to any involved lawyers or law guardians. Proof of service is a signed document which attests that the other party has been served with the notice. The filing fee for the court of appeals is $223 USD.

Notice of Appeal Deadline 

You must file the notice within 49 days of receiving written final orders from the trial court. Remember, if you are appealing a magistrate’s ruling, then you have 14 to 21 days (from receiving written orders) to appeal to the district court prior to appealing to the Court of Appeals.

Designating and Ordering Transcripts

The Court of Appeals is a review body and doesn’t accept new evidence. Therefore, the three-judge panel needs something to review. It will need the full Record on Appeal from the trial court.

The Record on Appeal should include:

• All documents filed by both parties in the case
• Exhibits from the hearing or trial
• The District Court’s final orders, and
• Any transcripts you have ordered and designated

The transcripts are a word-for-word, typed version of everything that was said during the lower court hearing or trial. The designation simply lets the District Court know which transcripts to include in the Record on Appeal.

Record on Appeal: Fees and Deadlines 

You will be expected to pay for the transcripts included in the Record on Appeal. This can get pricey. Transcripts cost around $150 per hour of hearing/trial time. For example, if your hearing took six hours, a full transcript would cost approximately $900.

There are two deadlines to keep in mind when ordering the Record on Appeal:

1. You have one week (7 days) from the date of filing the Notice of Appeal to designate transcripts; and
2. After that, the District Court has 63 days to send the records and transcripts to the Court of Appeals.

Note: The District Court will not send the transcripts until it has first received full payment from the appellant. This means that if a full transcript would cost $900, you must pay $900. The District Court will not send your transcripts if you’ve only paid $899.

Once the appellate court has the Record on Appeal, written arguments begin. It starts with the Appeal Brief.

The Appeal Brief: What it is and Why it’s Important

An appeal brief is a written legal argument that explains the reasons for your appeal. Writing a good brief takes a substantial amount of research, analysis, and writing. It will consume a lot of your attorney’s time.

Here’s what you should know about the Appeal Brief, which is also called the Opening Brief:

• The brief informs the court of legal and factual errors and explains why the decision should be overturned.
• The brief follows a strict format, with sections such as Statement of the Issues, Statement of the Case, and Argument.
• The Statement of the Case includes:
  • relevant facts,
  • procedural history, and
  • references to the case record (which the Court of Appeals should already have)

The appeals judges will have reviewed your case file before reading the Opening Brief. The brief will question whether the lower court applied the law correctly and impartially. This could entail parsing out specific lines — even specific words — in the statutes to ensure they were interpreted in proper context. Your attorney will scan past, similar cases for legal and factual support.

Appeal Brief Deadline 

Once the Court of Appeals has your case record, your attorney has 42 days to file the Appeal Brief. That’s 42 days to research, analyze, and write an articulate and compelling opening argument.

Next Steps in the Appeal Process 

The appeals judges will not be the only ones reading the Opening Brief. A second copy will be delivered to the opposing party (appellee) and their attorney(s). Once they receive it, they have 35 days to reply with ….

The Answer Brief 

This is an opportunity for the appellee to counter the arguments raised in the Opening Brief. The Answer argues in support of the trial court’s decisions and final ruling. It can refer to the transcripts, trial exhibits, relevant statutes, and past case law to boost its argument.

Once the Answer is filed, the side bringing the appeal can get the last word with …

The Reply Brief 

After both sides have presented arguments, the appellant has the option of filing a reply brief. This is an opportunity to address the appellee’s rebuttals, and shore up any potential weaknesses from the Opening Brief. The Reply usually focuses on two issues:

• What questions might the appeals judges have after reading the appellee’s brief? And
• What are the weakest legal and factual points in each side’s arguments?

Focusing on these questions shapes the content of the reply brief. While an optional step in the appeals process, a Reply makes good sense. If you can get the last word in a major case, make it count.

Your attorney must file the Reply Brief within 21 days of receiving the Answer Brief.

The Option of Presenting an Oral Argument 

Requesting an oral argument in an appeals court is optional. It may prolong the process and rack up additional expenses, without significantly impacting the outcome. Nevertheless, if you and your attorney believe oral arguments might sway an appellate judge, it could be a favorable choice.

Oral arguments can be effective if:

• Your case is unique, and/or
• The ruling would affect a lot of people, and/or
• It’s likely the judges will have questions.

Note: Your side gets only 15 minutes to present oral arguments before the appeals court. You must file a request for oral arguments within seven days after the final brief is filed.

Potential Outcomes of a Family Law Appeal

Once your appeal is initiated, there are only a few ways each issue can go. It’s important to understand the possible outcomes as you navigate the appeals process. They are:

• Affirm: The appellate judges see no issues with the original trial or hearing, and they uphold the lower court’s decision.
• Reverse: The judges nullify the original court’s orders after determining they were made in error.
• Remand: The panel sends your case back to the lower court to be heard again. This can happen if there were errors made in the lower court that need to be corrected.
• Modify: The appellate panel changes a portion of the lower court’s order. There were errors, but the panel does not believe that the entire order needs to be vacated.

Note: These outcomes can apply to an entire case or to separate parts of a more complex matter. For example: Let’s say you appeal a district court’s orders on parenting time and child support. The appellate court may affirm the initial parenting time decision, but remand the child support ruling back to the district court for reconsideration.

How Long Does the Appeal Process Take? 

Your appeal can take one or two years — even longer. It depends on the complexity of the case.  The process can be expedited if you can show that you or your children are in imminent danger.

Meanwhile, you must abide by the trial court’s orders until the appellate panel issues its decision unless there has been a stay awarded.

The Importance of Having Legal Representation for Your Appeal

As you can see, appealing a family law decision is a detailed process during which unexpected issues can arise. This is why you need an attorney with considerable appeals experience. Even if you didn’t initially have a lawyer, working with an appellate attorney is essential to your chances of success.

The Benefits of Retaining an Appeals Attorney 

First, you can appeal a lower court’s ruling without an attorney, but when you realize how work-intensive the process is, with tight formatting rules and strict deadlines, you’ll be glad you have a lawyer.

Appellate attorneys are uniquely skilled at preparing appeals cases. They excel in conducting comprehensive research and articulating complex legal arguments to judges. They are adept at addressing the appellate judges’ questions.

Any licensed attorney can attempt to handle your family law appeal. However, the process emphasizes certain skills that not all lawyers have. So, how do you select the right one?

Selecting a Family Law Appeals Attorney 

The best appellate attorneys possess a distinct skill set that elevates them to the highest echelons of the legal profession. Below are key characteristics that set them apart:

1. Intelligence: An appeals lawyer possesses exceptional analytical abilities, sound judgment, and a knack for articulating persuasive legal arguments.
2. Objectivity: He or she can size up the merits of an appeal, evaluating the strengths and weaknesses of each side. You do not want your appeal attorney focusing on minor or irrelevant arguments due to short-sightedness or inexperience.
3. Strategy: A great appeals attorney identifies the most promising issues in the record. They know which errors to focus on and how to make the most of a de novo review.
4. Writing Skill: Writing often plays an important role in appeals cases. Thus, the attorney most skilled and comfortable at it begins with a formidable advantage.
5. Oratory Skill: Being prepared and organized isn’t enough when a case goes to oral arguments. It’s equally important to appear prepared and organized. A good appeals attorney can present arguments without stammering or drifting into a numbing monotone.
6. Meticulousness: An appeals attorney diligently reviews relevant law and the underlying record. He or she must have efficient research skills and a sharp eye for identifying subtle errors.
7. Confidence: Any good attorney understands the importance of perception. Your appeals attorney should exude command and composure. They are not easily surprised in the courtroom.
8. Successful: Naturally, you want an attorney who wins. A track record of consistent success is the surest sign you’ll get your money’s worth.
9. Intangibles: It’s important to retain an appeals lawyer you know you can count on. You want someone who projects solidity, integrity, and advocacy. He or she should possess a strong work ethic, resilience, empathy, common sense, and have the ability to connect with people.

The Cost and Implications of Filing an Appeal

Filing a family law appeal is a major endeavor. If you’ve read this far and believe the process will be quick, inexpensive, and satisfying, you didn’t read carefully enough.

I know it can hurt when a ruling goes against you. When a family court decision seems tone deaf, unjust, or ill-considered, maybe it is. Maybe you could get it changed on appeal. But here’s the question: Are you prepared to invest at least another $10,000 and 12 to 24 more months to find out?

If you can say ‘yes’ to that, and your lawyer has confidence in the case, then full steam ahead.

Understanding the Cost of Appeals 

Family law appeals are costly, like any litigation. There are filing fees, the cost of trial transcripts, and the cost of retaining quality counsel. Your attorney will put in long hours reviewing records, researching case law, and writing briefs. You will be billed for those hours.

A good appellate attorney can provide a cost-benefit analysis of pursuing the appeal. You’ll also have various payment options, such as:

• installment plans,
• fundraising,
• credit cards, or
• personal loans with lower interest rates, depending on the agreed billing method.

Risk vs Reward When Filing an Appeal 

Never for a moment think you are buying a reversal. Justice cannot be bought. Rather, treat your appeal as you would any investment. There will likely be steep short-term costs, but when it’s your family, your children, the return can be, quite literally, priceless.

Even so, do not underestimate the risk you’re taking. One court has already ruled favorably for the opposing side. If you force the other side to defend against your appeal — and lose again — you could end up paying for their attorney and court costs too.

Alternatives to a Family Law Appeal 

Appeals cases are expensive, time-consuming, and “iffy.” If a ruling seems unfair but legal challenges are unclear, there may be a better way to seek post-trial relief. If you’re dissatisfied with the final orders in your case but not inclined to appeal, consult your lawyer about the following alternatives.

• A motion for a new trial
• A motion to vacate and enter a different judgment
• A motion to set aside the final orders
• A motion for reconsideration

Each of these options has its own process, pros and cons, and legal standards to meet before you proceed. A common, and perhaps most effective way, to amend an unacceptable ruling is modification.

Modification

Though limited in scope, you may be able to modify the most contentious family law issues, such as:

• Decision-making authority (child custody)
• Parenting time
• Child support, and
• Spousal Maintenance (or “alimony”)

The trial court maintains jurisdiction on these matters until each child reaches 19 or the maintenance duration expires.

When You Can Modify a Court’s Orders 

You can only file for a modification if you can show a “substantial and continuing” change of circumstances. This change must materially affect the court’s orders.

For example: You are ordered to pay monthly spousal maintenance after your divorce. After a few months, you learn that your spouse’s finances have considerably improved. Or, your own ability to pay has suffered, due to job loss or other unforeseen circumstances. Other examples:

• • You can modify parenting time if one parent relocates out of the geographic area.

• You also can modify parenting time if your job situation affects the court’s visitation orders.
• You can modify decision-making authority if a change occurs which could affect the child’s “best interests” or well-being.

Modifying Orders While an Appeal is Pending

What can you do when a “substantial and continuing” change in your circumstances happens during your case’s appeal?

For example: You’ve appealed final orders giving full decision-making authority over your child to the other parent. During the appeal, you discover that the custodial parent lost their job and moved in with a convicted child abuser. This significantly impacts “the best interests” of your child and warrants immediate modification. Which court has the authority to grant it?

Sorting Out Jurisdictional Matters 

In 2020, the Colorado Supreme Court ruled (In re W.C.) that trial courts lack jurisdiction to consider a motion to modify parenting during an ongoing appeal.

This raised serious issues, since the appellate court only reviews matters of law and proper adjudication. New facts are not permitted on appeal. Modifications are always based on new facts. Therefore, the Supreme Court’s ruling inadvertently created potentially harmful delays.

The state’s General Assembly had to spring into action.

HB 21-1031 to the Rescue 

In May of 2021, Governor Jared Polis signed HB 21-1031 into law. By modifying certain statutes, the law allows trial courts to modify certain family law orders while a case is on appeal.

The Act focuses on specific issues, granting trial courts the power to retain jurisdiction over the following matters during appeals:

• Parenting time
• Decision-making authority (child custody)
• Maintenance (alimony)
• Child support
• Temporary emergency parenting jurisdiction
• Matters pertaining to the Child Abduction Act
• Child support or parenting during a paternity matter

This is still no substitute for a full appeal. You cannot ask the court to modify orders without first showing a “substantial and continuing” change of circumstances.

Get an Attorney for Your Family Court Order Appeal 

As you’ve learned in this guide, appealing a family law decision is an expensive and time-consuming process. If you’ve got to do it, do it right. You need an experienced family law attorney who is well versed in the family law appeals process so you have the best possible shot at a positive outcome. Call 303-688-0944 to begin your case assessment.