What Are My Ex's Chances of Winning Her Appeal

[FatherWhoWon]

My question involves a child custody case from the State of: Virginia
I got physical custody of my daughter last November. Her mother appealed and we go back in about a month. I had a lawyer last time, and she didn't. I just learned yesterday that she hired a lawyer for the appeal, but he is mostly a criminal defense lawyer so I am not sure how good he will be.

Her mother (my kid's grandmother) also filed her own petition for custody and she got most of the summer the first time around (I get two weeks, plus every other weekend in the summer). Basically we didn't even really try the case the first time. Our guardian ad litem told the judge what she thought should happen (kid live with dad and grandma get summer), and the judge asked mom to tell why she thought that shouldn't be the case. Mom did not have very much to say. A few things came out, like how many times mom had moved in the last year, but that's about it. The whole thing only took about 20 minutes.

Now that mom's appealed and has a lawyer, I am anxious about what her chances are. My daughter has done much better in school since she's been with me, both in grades and behavior. I don't think she would be able to get my daughter back completely, but I am worried that she might get a lot more time than the every other weekend she's getting now. I'm also wondering what my chances are of getting grandma less time. I really didn't try to fight against grandma the first time, and like I said, we really didn't even get into any details with the judge. If I am showing that I am a capable parent, does grandma really need to have anything more than about 2 or 3 weeks of visitation in the summer? It's not like grandma never gets to see her other times anyway - mom lives with grandma (although she says its temporary, she's been there about 9 months), and weekend visitation with mom is in effect visitation with grandma.

I have a pretty good lawyer, but I am trying to keep my costs with him down - it cost me quite a bit the first time! and I want to do everything I can from my end. And I really want some honest opinions about what the chances of her winning an appeal are, and what the chances that I get more of what I want this time concerning grandma. Thanks for anyone willing to share.

[Dogmatique]

What is the basis of her appeal?

Not agreeing with the decision is unlikely to get her very far.

With regards to grandma, there might be a problem there - you've agreed to the schedule, and it's quite difficult to get grandparent visitation unless you can prove that it's detrimental to the child.

It's even MORE difficult if grandma actually has some form of custody.

[FatherWhoWon]

I don't think mom has any arguments other than she's the mom, and "nobody takes kids away from their moms unless they put their hands in boiling water." But I'm not sure if mom can make some sort of argument about the proceedings the first time. I don't think there were any sort of procedural problems, but it was a little unorthodox according to my lawyer, so I'm not sure.

I was really hoping for some optimism about grandma, a way to scale it back a little bit. The court order actually says that she has physical custody in the summer. I took it at the time because it was kind of the deal we all made - grandma's lawyer, mine, and the ad litem, before we went before the judge on the date of the trial, and I didn't want to lose everything. It all happened really fast. I wasn't really prepared for that kind of proposition, and when I agreed to it I also didn't know that the words "physical custody" were going to appear anywhere near grandma's name. It does not say, though, that she has any legal custody - mom and I have joint legal custody now. Does that even make sense? I just thought it would say she would have time with her in the summer. I don't know if that can be taken back. Grandma didn't have anything on paper before. According to my lawyer, though, its like trying the case brand new all over again, like it was never even heard before. Is that accurate? I'm making myself sick over all of the possibilities. This is almost as bad as the months before the first trial date.

[Dogmatique]

If that's the basis of Mom's appeal, I fear Mom might be in for a very depressing surprise, particularly since she agreed to the current situation (as opposed to having a judge rule against her specifically).

The grandma issue is more complex. Because it IS written into the court order, you're going to have to show why it should be modified. Is it harming your daughter? Has something changed since the order was written?

[FatherWhoWon]

Unfortunately I don't have any real strong evidence that being with grandma is harmful. I don't like some of the things that she tells my daughter (that all men are controlling/abusive, that her late husband was, and these are the things that he did that were controlling, the fact that grandma seems to have a revolving door in her trailer for her two daughters and their children who are unstable to move out and in as they find new places to live and are evicted from them . . . I have one witness, her mother's old boyfriend, who will say that she doesn't like being at grandma's house because grandma's new husband doesn't like kids. But I don't think any of this would really go very far). I know the court probably isn't interested in my personal opinion of grandma, and honestly I do believe that grandma really does love her. But I don't think her spending all summer with her is best either. And I'd like to at least have my two weeks in addition to the week before school starts again in the fall to get a routine established again and get ready for school. If its like retrying the case all over again, is it really like trying to change a current order? And since there hasn't actually been a summer with grandma yet, does that help because really that part of the order hasn't even been exercised yet.

[aardvarc]

I agree with Doggie. The court, for whatever reasons, has ALREADY determined that dad, not mom, should have primary physical custody - and that that custody should be shared with mom at a legal level and for visitation, and with grandma for summer custody. That would suggest a few things: one, that grandma played some SUBSTANTIAL role in the child's life (because as Doggie pointed out, grandparent rights are almost impossible to obtain without that important factor), and two, that for some combination of reasons, the court determined that it was in the child's best interest to live with dad and not mom.

What that means going FORWARD, is that the court isn't going to re-hash the past, it's going to be interested in what has changed in the CHILD'S life since the court put forth it's original orders. Not mom's life. Not grandma's life. And not dad's life UNLESS the changes can be shown to have some negative impact on the child. A lot of parents mistakenly believe that they'll just agree to one parent having primary custody while they "get their act together" and then come back and want 50/50 or full custody back - but it really doesn't work that way. One of the main goals of the court is to provide stability for the child, and judges understand that changes in custody mean LOTS of changes for the child on many levels, so they really look to for SUBSTANTIAL CHANGES that impact the child before considering distrubing the child's routine to the extent of altering the primary caregiver.

[FatherWhoWon]

One other thing that happened before the first court date was that my daughter ran away from home while she was living with mom/grandma in grandma's trailer and was found at 10pm walking down a busy street by police. Neither mom nor grandma told me about it, and grandma said that she didn't tell me because she didn't want me to know, because she thought I would use that against her. If that happened before the first court date, but was not brought up in court, can I still bring that up during the appeal?

[Dogmatique]

Not as a rule, no - you generally can't raise an issue at appeal that wasn't raised initially.

Update: I see from your other thread that you didn't share the full facts here. A trial de novo is a new trial. Depending on the procedures it may be based upon a review of the lower court record, may be an entirely new trial, or may be a bit of both. Whatever the court's approach, it will be possible for the other party to seek to expand the lower court record.