More Appeal Woes

[dipper]

Soc,

Custoday case last week in Virginia.  Proved change in circumstance, 14 year old wished to live here, judge made several biased, even prejudicial statements.  Now, I know best interest - best parent going forward is a separate criteria.  Researching the list on the Virginia court site, I see about 7 points of best interest that I think we can argue.  

Problem Soc is my feelings about my lawyer.  He is all for an appeal, but I dont feel comfortable with him.  He could have been much more effective at court .  Also, we simply dont have thousands more.

I know my chances are diminished going pro se, but I feel they may be just as good as using him.  

Do I file for an appeal through the J & D court that heard the case?


Do I have to file a brief at that time, or just fill out the appeal form?


How do I, as a pro se litigant, go about getting the judges findings and conclusions.........and copy of the court transcripts?

[socrateaser]

>Soc,
>
>Custoday case last week in Virginia.  Proved change in
>circumstance, 14 year old wished to live here, judge made
>several biased, even prejudicial statements.  Now, I know best
>interest - best parent going forward is a separate criteria.
>Researching the list on the Virginia court site, I see about 7
>points of best interest that I think we can argue.  
>
>Problem Soc is my feelings about my lawyer.  He is all for an
>appeal, but I dont feel comfortable with him.  He could have
>been much more effective at court .  Also, we simply dont have
>thousands more.
>
>I know my chances are diminished going pro se, but I feel they
>may be just as good as using him.  
>
>Do I file for an appeal through the J & D court that heard the
>case?

Usually, you file a "Notice of Appeal" with the trial court and serve it on the other party. You have 30 days from the date that final judgment/order in the case is entered in the court (the date on the notice of entry of final judgment/order that the court should mail your attorney). Then, in a civil proceeding you usually must file an undertaking/bond with the court for $500, as a good faith showing, to cover the minimum cost of attorney fees for the other party, in the appellate court proceeding, were they ordered against you, which could happen.

Then you will likely need a transcript of the entire record of the case, which will cost you about $1.50 per page for the court reporter to create, and then you'll need to write your opening brief on the merits, with 5 copies, one for the other party, three for the appellate court and one for yourself. Then the other side will write its response, then you write your reply, then there is oral argument, assuming the appellate court allows it, because usually they don't if it's a pro se litigant.

Also, there are separate rules of appellate procedure, and they must be strictly followed, because the court will want to see your briefs bound and typeset, much more formally than occurs in trial court (the higher up the food chain you go, the more the briefs resemble hardcover books, until at the U.S. Supreme Court level they "are" hardcover books.

Then the court rules and sends the case back to the trial court, and THEN, your same ol' judge will try your case (and probably rule against you for spite, so when it gets back, the first thing you'll want to do is try to remove the judge for "cause," as he's clearly gonna be prejudiced against you for having him overruled, especially on grounds of abuse of discretion).

I'm deliberately painting a very bleak picture for you, because your changes are not very good and even if you win it will cost you a lot of time and money and research, even without an attorney.

Personally, I think that you may have more luck finding some new reason to go back and ask for custody again, and as it seems your son and ex are always having new difficulties, that it won't be long before a new issue surfaces.

Not trying to be glib, just that your situation truly sucks and I empathize.

>Do I have to file a brief at that time, or just fill out the
>appeal form?

Just the notice of appeal.

>How do I, as a pro se litigant, go about getting the judges
>findings and conclusions.........and copy of the court
>transcripts?

You need to file a "Request for Findings and Conclusions," short and sweet:

"Petitioner, pro se, appears and hereby requests that the court issue findings of fact and conclusions of law concerning Petitioner's Motion for WHATEVERYOURMOTIONWASORIGINALLYCALLED, heard on ??/??/????, on grounds that Petitioner has appelled the court's decision in the matter."

[dipper]

Thank you Soc.  We had been told that we only have 10 days to appeal the court's decision.   Also, I had not realized that if the appeals court found a problem with the judge's ruling, they would send you back to that court for a retrial.  

Yes, we had told son that if we dont appeal, then we will refile next year.  I have been researching today and found that undertaking an appellate brief is not something I think I could do successfully.

Also, appeals court is a long process.  I believe the waiting period is 3 months between filings for custody.  Of course, we caught flack with the clerks this time because it had only been about five months since the last court order when we filed.  I am also concerned that the way things have went for us, that the mother will start asking for attorney fees.  Hell, if we can try pro se, she could too.


More than anything I am appalled with our backwoods court system.  IF we couldnt win this time with the problems that occurred last year, and with son's wishes to be here....I feel there will never be any hope.  

IF son should continue his wish to move here, would that be enough in itself to refile for custody?

[socrateaser]

>IF son should continue his wish to move here, would that be
>enough in itself to refile for custody?

I don't know how far away your son lives from you, but if he were to, say, keep getting on a bus and coming to your house, and refusing to leave. Or, when he can drive, if he drives to your home and refuses to leave, at that point, the court would be faced with putting him into juvenile detention, for refusing to stay home. Sending him to foster care wouldn't work, because he could just leave.

Point is that once the child is mobile, he can force the court to ok custody, because, there's really no alternative. Court's not gonna lock the kid up for wanting to live with his dad.