Appeals

• Jurisdiction: Maryland

XIV. APPEALS

A. Standard of Appellate Review

Maryland appellate courts have set out clear standards of review regarding a trial court's custody decision.

When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Md. Rule 8-131(c)] applies. If it appears that the chancellor erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor's decision should be disturbed only if there has been a clear abuse of discretion.⁴⁹⁵

B. Tactical Consideration

Appeals from custody/visitation rulings have some practical limitations every practitioner should be aware of when they advise their clients with regard to the consequences of an appeal. There is no automatic stay of a custody/visitation ruling. Thus, during the pendency of the appeal, the ongoing patterns of parenting/visitation continue as originally ordered. More often than not, the end result of a "successful" appeal is a remand to the same court that made the initial decision. The patterns of parenting/visitation which have evolved during the considerable period that may have elapsed while the appeal was pending will be taken into consideration when the remanded case is ultimately heard. Thus, the choice which must be made before an appeal is taken is whether it is more cost and result effective to wait some "appropriate" period of time and to then consider filing a modification proceeding if events have transpired since to the entry of the order which justify such a modification. This is a difficult choice which necessitates a careful cost-benefit analysis.

C. Effect of Appeal on Trial Court's Jurisdiction

An appeal of a custody order does not divest a circuit court of its jurisdiction to enter a "new," custody order, if a material change in circumstances are shown and a change is in the child's best interests.⁴⁹⁶ It was proper for an Emergency Motion to Immediately Vacate Custody and Visitation Orders and to Transfer Custody to one parent to be heard in the Circuit Court while an appeal of its earlier custody order was pending.⁴⁹⁷

D. Interlocutory Orders Are Appealable

Courts & Jud. Proc. § 12-303(3)(x) provides for a right of appeal from an order "depriving a parent, grandparent or natural guardian of...