Challenging a Custody Decree
Once a judge enters a final custody decree (that is, the legal document that establishes a parent's rights and obligations with respect to custody and visitation) a custody battle is typically closed. But there are still two ways in which the decree can be challenged and, possibly, overturned.
An Abuse of Discretion Appeal
Courts have a great deal of or freedom in deciding custody and visitation cases but there are limits to what they can do and how they may justify their decisions. If you and your attorney can show that a lower court "abused its discretion" in issuing a custody decree, you might be able to challenge it - though, typically, only within a short period of time after it was handed down.
For example, suppose a state supreme court rules that sexual orientation is irrelevant in custody and visitation disputes but a small county court judge denies a divorced gay father overnight visitation, stating that "this court will not condone homosexuality by granting a gay man overnight visitation with an innocent boy." If the case is appealed, a higher court would be likely to overrule this limitation because it represents an abuse of discretion by ignoring what the state supreme court has specifically said is against the law of the state if you file your appeal in a timely manner.
Change in Circumstances Appeal
Custody decrees can be challenged over time if the conditions under which custody was originally established have changed substantially. For example, imagine that you are a gay man who was denied custody of your children when you and your wife divorced and she announced that she would stay home to raise the children. But one year later, you discover that she has returned to work at a job that requires travel, which means your child must spend a significant amount of time in childcare. If you do not travel but would, in fact, be able to spend more time with the children, you might be able to challenge the custody decree. And depending upon where you live and how the judge views sexual orientation, you might be able to be granted full or partial custody if the judge can be convinced that the time you have available to spend with a child is more relevant than your sexual orientation.
If you have been denied custody or visitation, and either of these conditions seems to apply to you, talk to an attorney about the possibility of challenging your custody decree.