Appeal Regarding Child Custody


An appeal will not lie to the law court unless the appeal is from a final judgment.  However, there are certain exceptions to the rule.  One exception is interlocutory orders or rulings to be reported to the law court when the presiding justice believes that questions of law have been presented which require determination prior to any further proceedings in the case.  Another exception is the collateral order rule.[i]

In Caribbean Trading & Fidelity Corp. v. Nigerian Nat’l Petroleum Corp., 948 F.2d 111 (2d Cir. N.Y. 1991), the court held that appeal is permitted in that small class of cases which finally determines claims of right separable from and collateral to rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.  The court observed that there are three conditions for appealability under the collateral order doctrine.  The order must:

  • conclusively determine the disputed question;
  • resolve an important issue completely separate from the merits of the action; and
  • be effectively unreviewable on appeal from a final judgment.

Generally, when a divorce is adjudged the courts make order touching alimony, maintenance and custody of the children.  In Beckmann v. Beckmann, 358 Mo. 1029 (Mo. 1949), the court held that order respecting the custody of children are collateral and are severable from the judgment of divorce so that an appeal will not disturb the divorce.

Determination of child custody, whether in conjunction with a divorce decree or in the exercise of the continuing jurisdiction of the divorce court, is a special proceeding.[ii] An order in such special proceeding of prolonged nature, even though labeled an order of temporary custody, affects a substantial right and is appealable.[iii]

Ordinarily, a temporary child custody order is interlocutory and does not affect any substantial right which cannot be protected by appeal.[iv] In T. Fisher vs. K. Fisher, 1982 Ohio App. LEXIS 12881 (Ohio Ct. App., Clark County Nov. 3, 1982), the court held that when a determination of child custody is made, the mere labeling of an order as temporary does not render the order interlocutory in nature in determining whether a particular order is appealable.

An order modifying a dissolution decree to grant a permanent change of child custody is final and appealable as an order affecting a substantial right made during a special proceeding.[v] In McCaul v. McCaul, 17 Neb. App. 801 (Neb. Ct. App. 2009), the court held that custody determinations are considered special proceedings.  The court observed that whether a substantial right of a parent has been affected by an order is dependent upon both the object of the order and the length of time over which the parent’s relationship with the child may reasonably be expected to be disturbed.  Where child custody is modified on a permanent basis, the order clearly affects a substantial right.

However, in Smart v. Smart, 59 N.C. App. 533 (N.C. Ct. App. 1982), the court held that a temporary order entered pursuant to provisions of the Domestic Violence Act, granting plaintiff emergency relief and temporary child custody pending a hearing does not affect any substantial right of the defendant which could not be protected by timely appeal from the trial court’s ultimate disposition of the controversy on the merits and is not immediately appealable.

[i] Boyle v. Share, 377 A.2d 458 (Me. 1977)

[ii] Evicks v. Evicks, 79 Ohio App. 3d 657 (Ohio Ct. App., Lawrence County 1992)

[iii] Gordon v. Gordon, 33 Ohio App. 2d 257 (Ohio Ct. App., Hardin County 1973)

[iv] Cox v. Cox, 133 N.C. App. 221 (N.C. Ct. App. 1999)

[v] McCaul v. McCaul, 17 Neb. App. 801 (Neb. Ct. App. 2009)