Written by attorney Keith R Havens

Maryland Custody: Considerations on Whether to Appeal

You tried your custody case in Maryland and you are unhappy with the Judge's decision. Now you are cosidering whether or not to appeal the decision. In considerating your options, you should understand the legal frame work within which your appeal will be heard.

First of all, you must understand that, except in the most unusual circumstances, the appellate court will not consider new evidence or testimony. The appellate court will review the evidence and testimony presented at the trial.

Second, and most imporant is the legal standard to be applied by the appellate court when considering your appeal. The standard of review to be utilized in considering a decision of a trial court after a bench trial is well established by the appellate courts. As stated by the Court of Special Appeals in Brown & Sturm v. Frederick Road LP, 137 Md. App. 150, 768 A.2d 62 (2001): "In a bench trial like this one, 'the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.' Md. Rule 8-131( c). The trial court is thus the gatekeeper for receiving and weighing the evidence. In contrast, we are bound by the trial court's evidentiary findings, and we will not disturb those findings on appeal if they have support in any competent material evidence, even if we would have reached a different conclusion regarding that evidence. Barnes v. Children's Hosp., 109 Md. App. 543, 553, 675 A.2d 558 (1996); Mayor & Council of Rockville v. Walker, 100 Md. App. 240, 256, 640 A.2d 751 (1994). Likewise, for mixed questions of fact and law, such as the questions posed by the appellants, we will affirm the trial court's judgment when we cannot say that it evidentiary findings were clearly erroneous, and we find no error in that court's application of the law. Bowers v. Eastern Aluminum Corp., 240 Md. 625, 626-27, 214 A.2d 924 (1965)." Id., 137 Md.App. at 170. This standard of review has been applied equally to matters involving child custody. Maness v. Sawyer, 180 Md. App. 295, 950 A.2d 830 (2008)("because only [the trial judge] sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.")

Therefore, unless you can show the that trial court erred in applying the applicable law or that the judge's findings of fact were clearly erroneous, it is unlikely that the appellate court will reverse the trial court. All the foregoing having been said, you should speak with an attorney versed in appellate practice to determine whether your appeal has a likelihood of success.

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