If a notice of appeal has been filed, can a party still seek a motion/OSC regarding child custody during the appeal?

Asked over 1 year ago - Sacramento, CA

Or does an appeal of a family court ruling stay all trial court proceedings until the appeal is completed?

Attorney answers (4)

  1. Herb Fox

    Contributor Level 16


    Lawyers agree

    Answered . Your question is a little too vague to answer.
    Does the "family court ruling" on appeal concern child custody? If not there is no effect on a motion/osc to modify custody.
    Even if the ruling on appeal is the custody order, the trial court still retains jurisdiction to entertain a motion to modify/change custody as long as there is a sufficient change in circumstances to justify that motion.
    Finally, if the order on appeal is not a final custody order but is a pre-judgment temporary order, it is not appealable, but can only be reviewed by a petition for writ.
    I recommend that you consult with an appellate specialist who handles family law appeals. See www.CaliforniaFamilyAppeals.com

    Nothing contained in this communication is intended to be, or shall be deemed as, legal advice, counsel, or... more
  2. Maryam Atighechi

    Contributor Level 10

    Answered . The prior attorney is correct. Child Custody is always modifiable.

    Maryam Atighechi is a family law, real estate and civil litigation attorney in Sherman Oaks, CA. 310-498-1057.... more
  3. Thomas Allen Neil

    Contributor Level 13

    Answered . If the child is in some danger - and you have some corroborating evidence, not just mere allegations, then the lower court is not going to wait on the appeals court decision before making necessary custody changes.

    Thomas Neil is a Sacramento attorney, with 20 years experience, representing clients in court in Sacramento, the Bay Area, and surrounding counties. Or, if you cannot afford full representation then Mr. Neil can instead write you the forms and declaration you need, help you serve them, and tell you what to say and you can go to court by yourself. A well written declaration by an attorney, supported by proper evidence, will GREATLY increase your chances of success in court. Our office takes credit cards.

    Thomas A Neil
    3224 El Camino Avenue
    Sacramento, CA 95821
    (916) 446-4153

  4. William Matthew Thompson

    Contributor Level 10


    Lawyer agrees

    Answered . Custody is always subject to modification regardless of appellate posture. However, the "new" modification would need to be based upon "new" circumstances, not the issues in the appeal.

Related Topics


Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Child Custody in a Divorce

Child custody may be physical or legal. Physical custody covers who the child lives with, and legal custody is the right to make decisions.

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