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  1. #1

    Lightbulb Trial Court versus Appeal

    I am in Louisiana. I have filed for an appeal in my divorce/custody case. I am appealing the Judge increasing the time for my ex with the kids. I am also appealing transfer of my kids to another school.
    There is a provision in the Judgement from the trial court that if the kids are not doing good after 4 months, I can go back to the trial court to review custody. The kids are not doing good - they are failng in school. They hate the new school. So, I asked my atty to file in the trial court to change the custody back to the way it was, as well as to move them to the old school. He says that since I filed for an appeal on those very issues, I can't ask the trial court to change the custody becasue the appealate court has the jurisdiction now. Please, tell me if he is right? I talked to another atty who said that that's not correct, I could still go to the trial court. Oh, and the appeal hasn't started yet. We just filed and the trial court is getting the paperwork together.
    Thanks

  2. #2

    Default Re: Trial Court versus Appeal

    You should still be able to go back to the trial court.

  3. #3

    Default Re: Trial Court versus Appeal

    Can you tell me specifically which law or article of law allows me to do that? I really need to change the custody to the way it was and do it fast. My attorney, however, refuses to file, saying that the appelate court now has jurisdiction.
    Any help would be greatly appreciated.
    Thank you

  4. #4

    Default Re: Trial Court versus Appeal

    Hire the other attorney.

  5. #5

    Default Re: Trial Court versus Appeal

    I can't hire him, he does not take new cases now. I want to persuade my attorney that we can still file. Is there exception because it has to do with child custody? Could you elaborate on your answer so that I have something to work with and explain to my attorney?
    Thanks.

  6. #6

    Default Re: Trial Court versus Appeal

    I am not an attorney and even if I was I do not practice in your state. Your option is to hire another attorney if the one you have now will not comply with your wishes.

  7. #7

    Default Re: Trial Court versus Appeal

    Could I get an answer from one of the attorneys on the site, please.

  8. #8
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Trial Court versus Appeal

    I would suggest asking the lawyer who indicates that you can still resort to the trial court to identify the authority for his position, and then discussing that authority with your lawyer.

  9. #9

    Default Re: Trial Court versus Appeal

    While I fail to see what the appeal has to do with the situation, you can ask the appeals court to dismiss the case pending the outcome of your modification request in the trial court. A favorable decision in the trial court would moot the appeals court filing.

  10. #10
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Trial Court versus Appeal

    The issue would appear to be whether all custody proceedings in the trial court are stayed pending the outcome of the appeal, or whether the trial court has jurisdiction to continue to decide custody matters during the pendency of the appeal. That's something a Louisiana lawyer who handles custody matters should be able to answer.

    You are correct, one way or another, that the issue should also be resolved if the appeal is dismissed.

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