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

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. 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

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  2. 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.


  3. 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. Please be advised that although Ms. Atighechi is an attorney, the comments posted does not constitute legal advice. You should not rely on any advice or suggestions written and seek outside, independent counsel. An attorney-client relationship has not formed by reading the post.


  4. 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

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