How to Appeal a Divorce and Parenting Plan in Washington

by Beverly Bird
An appeal can be a difficult legal challenge.

An appeal can be a difficult legal challenge.

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Whether you live in Washington or any other state, you can usually save yourself a lot of time, money and stress if you can negotiate a parenting plan with your ex when you divorce. If you have to go to trial so that the court can decide custody, Washington law is exacting. The court even runs background checks on both parents. After the court makes an order, it can be difficult to undo it, but an appeal is one option.

Washington Parenting Plans

If the judge has to order a parenting plan, he’ll decide its terms in the same way it’s decided in every state -- according to the best interests of your children. Washington’s statutory best interests factors include consideration of which parent is best able to perform parenting functions and provide stability for the children. The statutes include references to work schedules and who will be routinely available for the children.

The Problem with Appeals

If you don’t agree with the judge’s custody decision, appealing it is an option, but you must be able to prove that the judge made a mistake. This might involve establishing that he gave inappropriate weight to someone’s testimony or that he wrongly applied the law such as by ignoring certain evidence that he should have considered. An appeal is not an opportunity to try your case all over again. You can’t present new evidence, as the appellate court will generally only review the documents and court records from your first trial. Although it’s possible to appeal a divorce and its corresponding parenting plan, these cases tend to be difficult to win due to the restrictions placed on the proceedings. However, if you’re successful, the appellate court will overturn the first judge’s decision and may order a new trial.

How to Appeal

An appeal involves a great deal more than just filing some paperwork asking the appellate judges to review your case. First, you must notify the court that you’re appealing the trial court’s decision by filing a notice of appeal. You have limited time in which to do this -- only 30 days from the date when the trial court issued the decree. You must then contact the trial court and arrange to have all the documents from your case transferred to the court of appeals. After you accomplish this, you must explain in a written brief what you think the trial court did wrong, and then you must make sure your ex or her lawyer gets a copy. She has the right to submit her own brief in response, and then you get a chance to address or argue, in writing, any points she raises in her document. You get the last written word -- and your appeal may be judged on the basis of these submissions. Sometimes, however, the court will schedule an oral argument during which both you and your ex or her attorney have the right to stand up in front of the appellate judges and argue your case.

Other Options

Filing an appeal is an onerous process, so you might want to consult with an attorney to find out if you have any other options. This may depend on specific details regarding your case. For example, if you suspect that your ex committed fraud, such as by lying to the court or falsifying evidence, you can file a motion with the original court, asking to have your decree and the parenting plan set aside or vacated. This means it no longer legally exists, so one downside to this option is that if the parenting plan was also part of your divorce case, you’d still be married. Your other option is to file a motion for a parenting plan modification, but this can be almost as difficult as an appeal in Washington. You’d have to establish in your motion papers that something substantial and unforeseen changed since your order or decree was entered and that the change poses a risk to your child. Based on your papers, the judge decides whether the situation warrants a change in your parenting plan, and if it does, he’ll grant you a hearing.