Being that custody involves a "best interests of the child" analysis, custody orders are always subject to change. This fluid concept in custody raises some issues as far as when an appeal can be taken. Generally speaking, a party has a right to an appeal after a final order has been reached. In the alternative, interlocutory (or not final) orders may only be appealed as authorized by the law. There is not a basis in the law for an appeal of an interlocutory custody order. Therefore, a custody order must be deemed final in order to be eligible for an appeal.
Whether a custody order is final and hence appealable is based on two main factors: (1) whether the order was entered after the court has completed its hearings on the merits; and (2) the order was intended to constitute a complete resolution of the issues pending between the parties.
In Kassam v. Kassam, 811 A.2d 1023 (2002), the Superior Court does a brief summary of the case law indicating when a custody order will be deemed final and thus appealable versus when the custody order is still interlocutory and not ripe for appeal. In Parker v. MacDonald, 496 A.2d 1244 (1985), the Court issued an order after a full hearing. The order included language that the parties could come back for further review of the order however this did not defeat the finality of the order since it is always the case that the parties can later petition for modification in custody cases. Parker is to be distinguished from Williams v. Thornton, 577 A.2d 215 (1990) wherein the father's attempt to appeal while a petition on custody was still pending was quashed.
Sawko v. Sawko, 625 A.2d 692 (1993) outlines a key factor in determining whether a custody order is final enough to be the subject of an appeal. In Sawko there was a full hearing on the issues but the Court also set a specific future date for further review of the case. The act of setting a certain date for further review made the custody order interlocutory and not final (distinguish from Parker where the order said the parties could come back for review but did not set a specific date). Accordingly, once an order has been reached after a full hearing settling the claims of the parties and no future date has been set for further review, a custody order will likely be deemed final and an appeal can be pursued if desired.
The goal behind this stance on custody orders and their appealability is meant to protect children from repetitive and/or unnecessary litigation and to allow the trial courts to complete their custody determinations without disruption.
In closing, if you're thinking about a custody appeal, remember the two requirements for an order to be final: (1) whether the order was entered after the court has completed its hearings on the merits; and (2) the order was intended to constitute a complete resolution of the issues pending between the parties. Also, make sure there are no future scheduled dates with the court as that will defeat an assertion of finality.
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