Almost every time I walk through the courthouse, I hear it: someone, usually a parent, angry because the court got it wrong. What “it” was could be a child custody dispute, a support amount, or even a property issue in divorce. It doesn’t matter. These parents are mad, and usually, they don’t know what to do about it. I’m here to help.
First, Who Made the Decision?
Before you can decide what to do when the court got your family law decision wrong, you need to know who within the court system made the bad call. Metro Detroit family courts are busy places. Judges routinely hear more than 30 cases in a day and have thousands of matters under their jurisdiction at any one time. To help them handle the load, Michigan law allows them to refer custody, parenting time, and support issues to Friend of the Court referees. These are attorneys hired by the courts (not elected), who can hear evidence, take testimony, and make recommendations about your case.
But unlike judges, referees don’t enter orders. They can file recommended orders, and those orders can later be signed by a judge and become the law in your case. But any time a referee makes a ruling, each party has the right to object to that decision and ask the judge to review the case. In fact, you will need to do that before you will have a chance to file an appeal and ask a higher court to tell your judge they got it wrong.
Judge or Referee: How do You Know?
It can be hard for moms and dads to know whether they are appearing before a judge or a referee. They both wear robes and sit at big, tall desks in the front of courtrooms. They both have staff helping them. They both often get called “your honor”. So how do you know who made the decision in your case?
There are 2 good options:
- Look at the Notice of Hearing that told you where to go and when. If it says “Friend of the Court Office” or “Before Referee” and then a name, it was probably a referee who heard your case. If the Notice says “Courtroom” and “Before the Honorable” (or Hon.) and then a name, you were probably talking to a judge.
- Look at the Order you received after the hearing (you may have been given it at the time, or it may have been mailed to you after the fact.) If that paper says “Recommendation” or “Recommended Order”, and has the signature of two officials, it was probably a Friend of the Court decision. If it says “IT IS ORDERED” on the first page, and has one signature, it is probably an order by a judge.
How to Get a Judge to Review a Referee Decision
You only have a few short days to ask a judge to review a Friend of the Court referee’s recommendation before it will become a final order in your case. Every county’s procedure for doing that is different. In Metro Detroit, the court will send you instructions for requesting that review right along with your order. But those instructions can still be confusing.
It is extremely important to talk to an experienced family law attorney if you think the referee got it wrong in your family law case. Especially if neither side had a lawyer at the hearing, what you think is “wrong” might simply be a misunderstanding of the law. However, other times, the referees do make mistakes or fail to consider important evidence. In those cases, you absolutely should talk to a family lawyer right away to appeal the decision to the judge.
What if the Judge Got it Wrong in Your Case?
Referees aren’t the only ones who make mistakes. Family law judges are busy people who make lots of decisions every day. When your case goes to trial, the judge may hear days of testimony and mountains of evidence stretched out over weeks, or even months. It is easy for things to get lost in translation. Judges also sometimes make mistakes on what the law is, or how it should be applied, that need to be corrected before they harm you or your family. That is when you need to file an appeal.
Depending on the issues in your family law case, and what stage you are in, you may be entitled to an appeal “as a right” or you may need to ask permission to appeal “by leave” of the Court of Appeals. If your appeal is “as a right”, that means you are legally entitled to have your case reviewed by a 3-judge panel, who will issue an opinion either agreeing with the trial court judge, or explaining how he or she got it wrong. But if you file an application for leave to appeal, it is up to the Court of Appeals to decide if your situation is unique, important, or has a broad enough impact to take the time to hear it.
Appeal By Right or By Leave: How Do You Know?
Whether your appeal will be by right or by leave depends on what was ordered, the form of the order, and when it comes in your case. You will have an appeal by right if the decision:
- Is included in your Judgment of Divorce or a Final Judgment of the court
- Involves a decision to establish or modify child custody (not just parenting time)
- Is on a Motion to Change Domicile or move the child out of state
- Involves attorney fees (except for while the case is still pending)
All other decisions, including post-judgment orders on school enrollment, parenting time, child support, and medical issues can only be appealed by leave of the court.
How to File an Appeal
Even more than when a referee gets it wrong, if you need to appeal a judge’s decision, you need a lawyer. Family law appeals are complicated and require an extensive knowledge of the law and the history of past court decisions. They also benefit from an objective eye to tell whether a given error is likely to catch the court’s attention.
But sometimes you don’t have much longer to file your appeal than you do to object to a Friend of the Court ruling. If you think the court got it wrong, you need to have that conversation with an experienced family law attorney right away, so that there is time to gather the necessary documents (including transcripts of all your hearings), and prepare your appeal. Don’t be one of those people complaining at the courthouse because you waited to long to object when the court got it wrong. Talk to a lawyer today to protect your rights, and your family.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She helps families in Metro Detroit address and resolve child custody and paternity issues. If you need help modifying or enforcing a child custody order, contact Schmidt & Long to schedule a consultation.