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  1. #1

    appeal judges decision?

    What is the name of your state? minnesota

    i am asking this for my mother-in-law (mil)

    mil and fil have legal custody of her neice and nephew (her brother's kids). they have lived with them for almost 4 years now. there is a ton of history but i don't think that's relevant for this question - if it is let me know and i can add more. birth father is out of the picture - gave up his rights years ago. birth mother filed for custody and visitation. had a hearing yesterday (not the first hearing) to decide custody. The bm's lawyer gave a letter (or motion? not sure exactly) to the judge saying they wanted to drop the custody issue for now and asked if they could decide the visitation issue instead. (originally visitation was supposed to be decided at a later hearing because obviously if bm got custody back visitation would be moot). when the mil, fil and their lawyer went to court yesterday the change in the schedule of hearing was the first that they heard about it. Their lawyer objected because they weren't prepared and didn't have any of their witnesses there. hte judge said it didn't matter and since they came so far (the bm lives 4 hours away from where court is) they would just have the hearing that day. the issue was whether or not visitation should be supervised. everyone (even bm own sister) says it should be. judge disregarded guardian ad litem's recommendations and gave her unsupervised visits even after her report said that the bm acts inappropriately and is basically a child herself (not agewise just maturity). he said the past doesn't matter even though bm has a history of taking off to different states (that's a bunch of crap but i realize that's his decision to make) basically judge had his mind made up before he even entered the courtroom.

    can they appeal this decision? i guess the main issue is that they weren't properly notified (what is it like 14 days before hearing to file a motion or something?) and weren't given a chance to have their witnesses there because of the last minute change. is it even worth appealing? and since as iaal so delicately put, judges can't be sued - what happens when she takes off with the kids since the hearing wasn't fair?

    any ideas about what to do?

  2. #2
    Join Date
    May 2002
    Something's not making sense to me. This was supposed to be a custody hearing, yes? And MIL/FIL and lawyer didn't have their witnesses there? Wouldn't many (if not all) of the same people testify? 'Cause a change in custody is much more serious than a petition for visitation. I could see a problem if they were expecting a visitation hearing, and it got turned into a custody hearing. But vice-versa? Like I said - it doesn't make sense to me.

  3. #3
    the way i posted is correct - it was supposed to be a custody hearing and then was changed to a visitation hearing.

    the way i understand it the hearing was supposed to be a quick short one because there is no basis for a change in custody. she had no proof, there were no change in circumstances, and since it's not a divorce custody case i think there may be different circumstances as to changing custody (children were taken away from her several time by the state and custody was given to mil after children being in foster care). the guardian ad litem was there to testify. their witnesses came in more as they had been supervisors of previous visits and knew of her inappropriateness and therapists and school teachers who would testify as to the effect that the visits (especially unsupervised) have on the children's behavior, attitude, mental and physical well-being.

  4. #4
    i talked to my mil. she said the hearing was to see if there was any basis to a custody change and if there was then they would do the whole investigation thing and whatever else. they did not need any witnesses because it was up to the bm to prove that they were unfit and she didn't have anything to prove that. apparently the mil's lawyer received a fax late last friday that was the bm affidavit which didn't allow time for them to respond to it either. he didn't know until at the hearing that the judge had decided to let them go ahead with the visitation part of it and therefore had no witnesses. does this make more sense now?

  5. #5
    hjallge Guest
    It is very difficult to get a judge to change another judge's ruling. On top of that it will cost thousands more than an actual custody case. It doesn't sound to me that there is any reason to appeal anyway.

  6. #6
    Join Date
    Apr 2003
    Long Island, NY
    Was visitation offered as an alternative to a change of custody in the motion or petition? or did the BM' lawyer just throw that in?

    Did their lawyer ask for a continuance based on the short notice and need to prepare?

    can they appeal this decision?

  7. #7
    there were two issues that were originally being dealt with. one was custody the other was visitation. temporary visitation was set up for during the course of the hearings. if custody was not changed then a more permanent visitation order was to be established. the bm lawyer dropped the custody issue (for now - as they put it) because they did not have enough to make a case for it.

    yes the lawyer asked for a continuance. the judge said no "because they had come so far" (4 hours approx.)

    my first thought about appealing is that we did not get a fair hearing - maybe that only applies to hearings where you are being charged with a crime or something i don't know. i just thought i'd ask to see what was thought of this and if the appeal would be worth it because of costs and if the outcome would even be different. thanks for the answers

  8. #8
    Join Date
    May 2002
    Originally posted by snostar
    can they appeal this decision?
    on what judicial grounds?

  9. #9
    this is the answer i received as per a minnesota lawyer if anyone is interested:

    If the matter was heard by a Judge, you must immediately bring a Motion for Amended Findings and/or a new trial. If that relief is denied, he still gives you a better chance on appeal. There is a very short timeline for making such motions and they generally must made within 30 days from the Order.

    The basis for the review or appeal is simple, the Court did not allow you suffient Due Process to present your case. Minn. Rules of Family Court 303.03(a) states specifically that:

    "No Motion shall be heard unless the initial moving party serves a copy of the following documents onopposing counsel and files the original with the court adminirator at least 14 days prior to the hearing:

    Notice of Motion and Motion;

    Any relevant affidavits and exhibits

    Any memorandum of law teh party intends to submit."

    thank you for your responses.

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