Can I Appeal a Child Support Order?

Can I Appeal a Child Support Order?

If you believe a family court judge has ordered you to pay too much child support or hasn’t awarded you enough child support, you may be able to appeal the order. Like other court decisions, child support orders first come from a trial court, and then the losing party has the right to appeal to higher courts. The process for an appeal is different from the process for your initial hearings, so there are some things you should be aware of if you are considering appeal of a child support order.

Can You File a Motion to Reconsider a Child Support Order?

Illinois law 735 ILCS 5/2-1203(a) allows you to file a motion to reconsider within 30 days of the judge’s decision in a non-jury trial. Nearly all child support decisions are made by judges rather than juries. A motion to reconsider asks the original judge to amend their initial ruling. You may want to try a motion to reconsider before you formally appeal to a higher court.

There are three general situations where you can use a motion to reconsider.

  • Newly discovered evidence. Newly discovered evidence is evidence you didn’t have available to you at the original hearing. It isn’t evidence that you didn’t ask about or didn’t emphasize in court. Newly discovered evidence is something like finding out that your former spouse failed to disclose their second job when asked to list all sources of income.
  • Changes in the law. A change in the law can either be a new law passed by the legislature or a higher court decision that affects all cases. The legislature might pass a new law that changes the age for child support or that changes the child support formula. Even if you’re aware of the possibility of the new law during your case, the judge can’t use it until the law officially passes. An example of a higher court decision is a situation where an appeals court has ruled that a judge is not allowed to consider a certain factual situation, and the judge in your case based their decision on the facts that, under the new ruling, they weren’t supposed to consider.
  • Errors in the court’s application of the law.Since the trial judge’s job is to decide the law when both parties disagree, getting a judge who ruled against you to agree they were wrong is very difficult. However, there can be situations where an unexpected issue comes up at a hearing, the judge makes a quick ruling, and the judge will agree to reconsider after more detailed legal arguments are presented in a motion.

What’s the Process to Appeal a Child Support Order?

If you don’t agree with a child support order, you can file an appeal. This is similar to filing your initial case, except now you’re also explaining why you believe the trial court judge was wrong. An appeal is not getting a second opinion. You have to show why the judge made a mistake in the law, came to a conclusion that no reasonable judge could have reached based on the facts, or otherwise abused their discretion. You are limited to legal arguments and can’t present new evidence.

If the trial judge makes a subjective decision and you don’t have a reason for the appeal other than that you wanted the judge to make a different decision, you won’t be able to win the appeal. This is true even if the appeals judge would have ruled the way you want if they were the trial judge. Therefore, it’s important to work with a child support appeals lawyer who can help you make the appropriate legal arguments.

What is the Standard of Review for a Child Support Appeal?

The standard of review for a child support appeal is known as abuse of discretion. There are many situations where a judge could rule multiple ways and decides which way to rule based on discretion. A judge’s discretion is not subject to appeal.

For example, Illinois law has default calculations for child support payments based on the parents’ income. Judges do have discretion to change the child support amount in certain situations. If a judge awards for more or far less in child support than the default amount without giving a reasonable explanation, that is an abuse of discretion. If a judge gives a reason for not using the default child support amount, your lawyer would need to look at appeals court decisions in similar cases to see if the judge’s reason was within their discretion or not.

What Happens If You Win a Child Support Appeal?

There are two things that can happen if you win a child support appeal.

  • The appeals court changes the judge’s order. If the judge makes a mistake that can be corrected with no additional factual questions, the appeals court can change the judge’s original order. For example, if the judge used the child support formula for two children instead of three, the appeals court can recalculate the child support order using the correct number of children.
  • The appeals court sends the case back to the trial judge. Many cases that get appealed are complex and need the judge to find further facts after the appeals court reviews the law used. For example, the judge may increase child support based on a child’s medical condition without getting enough facts on the record to support the amount awarded. The appeals court may tell the trial court the law requires the judge to consider factors X, Y, and Z and tell the judge to hold a hearing so the parties can properly present evidence on those factors.

What If You Have a Change in Circumstances after a Child Support Order?

If you have a change in circumstances after a child support order, such as a change in job, you may be entitled to have the child support order modified. A modification is a different process than an appeal and requires you to file a new petition with the trial court. You’re basically starting a new process instead of saying the initial process was wrong.

Do You Have a Reason to Appeal a Child Support Order?

If you want to know whether you can appeal a child support order, the attorneys at Wolfe & Stec can help. Call 630-305-0222 for a free assessment of your case.

Attorney Marc Wolfe

Marc Wolfe has been representing clients in criminal matters in Chicago and the entire State of Illinois for over 30 years. Mr. Wolfe has tried over 300 cases to verdict and represents clients facing investigation or prosecution for a broad range of state and federal criminal offenses, including murder, embezzlement, sexual abuse, drugs, marijuana and white collar crimes. [ Attorney Bio ]