Because the trial judge has the opportunity to directly observe the evidence through witness testimony and documents, photos, etc., most appellate courts will very rarely second guess a judge’s factual findings. In most cases involving domestic violence and family law, there is no jury and the judge serves as the “fact finder.” As fact finder, the judge must consider the evidence and decide whether or not a certain fact has been proven. Generally, a judge’s ruling in the trial court must be based on the facts that are proven at trial. The judge made an error regarding the facts The appellate court will look at the law that was supposed to be applied and decide whether or not the trial court judge made a mistake. Most states have laws setting forth certain factors that must be considered, typically called “best interests factors.” If one of those factors is whether or not a parent committed domestic violence but the trial judge ignores domestic violence evidence in making the custody determination, you may have grounds to appeal based on an error of law.Īn error of law is the strongest type of ground for appeal because the appellate court reviewing the case does not have to give any weight to what the trial court judge did. For example, in custody cases, a judge must determine what is in the child’s best interests. This can occur if a trial court did not follow either the statute or case law in your state that is supposed to apply in your case’s circumstances. The order of protection may not change the custody of children when an action for dissolution of marriage has been filed or the custody has previously been awarded by a court of competent jurisdiction.Although it may vary by state or by the type of case that you are appealing, typically the grounds for an appeal are as follows:Īn “error of law” generally means that the judge in your case applied the wrong rule or “legal standard” to the facts of your case. Prior to terminating any order of protection, the court may inquire of the petitioner or others in order to determine whether the dismissal is voluntary.Ħ. Any order of protection or order for child support, custody, temporary custody, visitation or maintenance entered under sections 455.010 to 455.085 shall terminate upon the order of the court granting a motion to terminate the order of protection by the petitioner. All provisions of an order of protection shall terminate upon entry of a decree of dissolution of marriage or legal separation except as to those provisions which require the respondent to participate in a court-approved counseling program or enjoin the respondent from committing an act of domestic violence against the petitioner and which enjoin the respondent from entering the premises of the dwelling unit of the petitioner as described in the order of protection when the petitioner continues to reside in that dwelling unit unless the respondent is awarded possession of the dwelling unit pursuant to a decree of dissolution of marriage or legal separation.ĥ. No order entered pursuant to sections 455.010 to 455.085 shall be res judicata to any subsequent proceeding, including, but not limited to, any action brought under chapter 452.Ĥ. Any order for child support, custody, temporary custody, visitation or maintenance entered under sections 455.010 to 455.085 shall terminate prior to the time fixed in the order upon the issuance of a subsequent order pursuant to chapter 452 or any other Missouri statute.ģ. All full orders of protection shall be final orders and appealable and shall be for a fixed period of time as provided in section 455.040.Ģ. After notice and hearing, the court may modify an order of protection at any time, upon subsequent motion filed by the guardian ad litem, the court-appointed special advocate or by either party together with an affidavit showing a change in circumstances sufficient to warrant the modification.
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