What does the standard of review mean on appeal in a family law case in Texas?

Appellate, Blog, Brad M. LaMorgese

By Brad LaMorgese

When a case gets to an appeal, the appellate court generally looks at the documents and filings in the lower court as well as the transcripts of the trial and any evidence. It’s not a retrial or presenting evidence that is new. The appeals court is generally only going to look at what was filed and already presented to the trial court.  It’s a “cold reading” the record and filings.

In looking at the case, the court will use what is called the standard of review.  This is essentially the lens the court applies when reviewing the case. The standard of review is a way of saying how the appeals court will look at it.

There are some standards that are very deferential to the trial court, like the abuse of discretion standard (review of a child visitation schedule for instance).  It is hard to overturn a ruling when the abuse of discretion standard applies.  Then there are “sufficiency of evidence” standards on appeal that are more in the middle of how much deference is shown to the trial court.  At the other end of the spectrum is the de novo standard that is least deferential to the trial court, meaning basically the appeals court looks the issue anew.  Examples of this would be review of a standing ruling in the trial court or interpretation of a law by a trial judge.

Obviously, if you are appealing you would like the least deferential standard of the trial court.  And vice versa if you are defending an appeal. But in deciding whether to pursue an appeal or defend an appeal — and correctly present it — it is critical to get the standard of review correct.

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