Because custody cases are so contentious, and the stakes are so high, either the father, the mother, a step-parent, or, in some circumstances, grandparents may continue the custody battle after the case is over in Family Court, by going to the appeals court (child support cases and termination of parental rights cases are also frequently appealed as well). These appeals can sometimes include allegations of abuse or neglect, making them even more complex.
While a party may have a right to appeal, he or she does not have a right to a “do-over” of the trial in the lower court, and must instead show grounds for the appeal, i.e., that the trial court committed some kind of error or multiple errors. A comprehensive review of trial proceedings is necessary, and having a well-structured argument can greatly influence the outcome of an appeal.
In New York Family Court, appeals are decided by the Appellate Division. When the Appellate Division decides the case, it can reverse the Family Court’s orders, modify the order or orders, or do nothing (which is called “affirming” the lower court’s orders). If the appellate division reverses the Family Court order, it usually orders a new trial by the Family Court with some instructions.
If the appellate court sends the case back for a new trial, it usually sends the case back to the same judge, but in some situations where the appellate court is very unhappy with either the judge’s decision or the way that the judge handled the case, it is sent back for a new trial before a different judge.
If the appellate court has enough information, it has the power to make its own findings of fact and make its own decision without sending the case back to the Family Court. This ability highlights the importance of a robust argument to effectively demonstrate errors or abuse of discretion in the prior proceedings.
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What Is The Appellate Division?
Table of Contents show 1 What Is The Appellate Division? 2 Commencing and perfecting an appeal 3 Costs Of Appeals – Time And Money 4 Common Issues That Come Up In Child Custody Appeals
The New York State Appellate Division consists of four departments. In New York City, the First Department decides appeals from courts located in Manhattan and the Bronx, while the Second Department hears cases from courts located in Queens, Staten Island, Long Island, and Westchester Counties. Cases in upstate New York are handled by either the Third Department or the Fourth Department.
Each department has its own rules, which are summarized on their respective websites. The Appellate Division handles all kinds of cases, including criminal cases, from New York State trial courts, and most civil cases, with some notable exceptions, such as Federal Cases.
In general, the Appellate Division is required to give deference to the findings of fact of the Family Court unless the Family Court’s findings of fact are clearly erroneous.
It is especially hard to convince an appellate court to overturn a child custody decision because there is special case law that says that the appellate courts should give even more deference to the trial court’s findings of fact in child custody cases. This deference emphasizes the need for a thorough review and strong argument to effectively challenge a decision.This is because custody cases are largely about the character of the litigants (usually the parents of the child or children) and the trial judge, who has been handling the case for some period of time, has the unique opportunity to observe the litigants, and get to know them. The judge’s opinion, therefore, carries significant weight in determining the outcome of such cases as the ability to form a well-rounded view of the individuals involved can matter greatly in custody decisions.
This deference does not extend to legal issues about the law, rather than issues about the facts. As it turns out, the “law” can differ between the four departments. The Appellate Court will give greater weight to appellate decisions from its own department than appellate decisions from other departments. In this context, having a well-prepared legal opinion can matter when it comes to navigating these complexities.
Commencing and perfecting an appeal
A litigant can file an appeal “of right” from a final order of the Family Court by serving and filing a document called a “Notice of Appeal”. The original notice of appeal must be filed with the clerk of the family court that heard the case and made the order. It may be necessary to file a number of copies of the notice of appeal with the clerk. The notice of appeal must also be served on the other parties in the case and upon the attorney or attorneys for the child or children. In recent years, a document called an “informational statement” must also be served and filed. It is absolutely essential that the Notice of Appeal be filed and served on the opposing party within a short time frame, which varies between 30 and 35 days from the date of the Order, depending on the method of service used. Seeking help from a knowledgeable legal professional can ensure these steps are properly followed.
Once a Notice of Appeal has been filed, the party appealing the order has a period of time to “perfect” the appeal. The period of time can vary between departments, but is usually six months from the date of filing. It is possible to extend this time by making a motion to “enlarge” the time to perfect. This flexibility can help appellants ensure they have all necessary materials in place.
Appellate practice is very specialized and very technical, and few litigants are able to even successfully perfect their case without the assistance of an experienced lawyer. There are very specific rules which include the type of paper that must be used, the fonts used, limitations on the number of words or pages in the brief, the way that appellate briefs must be bound, etc. In some departments, electronic briefs must also be filed in addition to physical briefs, and there can be special requirements for bookmarking and hyperlinking which are required in these briefs. It can help significantly to get guidance from seasoned professionals familiar with these requirements.
In Family Court appeals, appellate lawyers and the few pro se litigants who try to appeal on their own do get one break. In Family Court cases, the parties are allowed to perfect using the “original record,” which means that they do not have to obtain and include copies of all of the documents found in the court file or create an appendix which has to be separately bound, served, and filed. Understanding this aspect can help simplify the process for those involved.
In the majority of cases, the party who is appealing must arrange to have the transcripts transcribed and must provide copies to the opposing party and submit copies to the appellate court. However, with proper planning and legal assistance, navigating these requirements becomes more manageable.
Many appellants use appellate printers to print the briefs and the appendixes, if required, and appellate printers are very expensive. The original record method saves both time and money.
Also, in many cases the parties will have submitted exhibits to the trial court, and the appellant will have to obtain copies of the exhibits but does not have to provide copies to the opposing parties, who are responsible for getting their own copies. A detailed consultation with a well-informed attorney can clarify these responsibilities.
Sometimes both parties are unhappy with the trial court’s orders and both file appeals. These are called “cross-appeals” and are decided by the same appellate panel. In these cases, understanding each party’s interests can be vital to forming a strategic approach.
In many custody cases, the trial judge assigns an attorney for the child, or children. The attorney for the child also has the right to appeal, and can also submit a response to the other parties’ briefs. These unique interests ensure the child’s voice is represented in any petition filed.
It can take anywhere from six months to well over a year to perfect the appeal and get a decision from the appeals court. Unfortunately for the appellant, most cases are “affirmed”, which means the party appealing has lost. A thorough consultation can help manage expectations and enhance the overall appeal strategy.
Costs Of Appeals – Time And Money
It is usually necessary for the party appealing to obtain the transcripts of the court proceedings. Transcripts can be expensive depending on the number of pages. I believe the cost of transcripts at present is somewhere around $5 per page. There also may be filing fees, and appellate printers can charge thousands of dollars to prepare and print the briefs.
It is usually necessary for the party appealing to obtain the transcripts of the court proceedings. Transcripts can be expensive depending on the number of pages. I believe the cost of transcripts at present is somewhere around $5 per page. There also may be filing fees, and appellate printers can charge thousands of dollars to prepare and print the briefs.
Because appellate cases from Family Court are hard to win, even by experienced appellate attorneys, legal fees can run between $5,000 to over $20,000 for an appeal of a child custody case. While most experienced appellate lawyers charge fees of over $400.00 per hour, I charge only $250.00 an hour. This fee includes a consultation to discuss all interests thoroughly before proceeding.
Because of the sometimes hyper-technical rules and procedures, not all family law attorneys are willing, or have the necessary experience, to take on appeals, so if you need representation, you may have to find an attorney who is an appellate specialist. A specialist will ensure your petition is founded on a solid legal basis.
An attorney is not allowed to commence a case which is “frivolous” and to do so would be an ethical violation. In the context of appellate practice, “Frivolous” means that the appeal has no legal basis under the law and is not even a good faith effort to convince the appellate court that the law should be changed. It is sometimes difficult to determine whether or not an appeal would be frivolous without having read all the transcripts first, and obtaining transcripts may be very expensive. A comprehensive consultation is key to determining the viability of an appeal without venturing into frivolous territory. Some types of cases are, however, less likely to be frivolous. For example, it is seldom frivolous to appeal a relocation case, as many factors typically come into play and these cases are seldom black and white. The rules and requirements can vary significantly depending on the jurisdiction, which adds complexity to these cases and underscores the importance of understanding the local legal framework.
Common Issues That Come Up In Child Custody Appeals
In the majority of situations, a party will have to wait until the case is over and the court has made its decision and has entered a judgment to appeal. It is usually necessary to make a separate motion for leave to appeal a temporary order. It is almost never possible to appeal an evidentiary ruling.
However, if the final decision was based upon an erroneous ruling or set of rulings, these errors can be addressed in the appeal of the final order.
It is not possible to appeal an order or judgment which is made on consent. It is also almost never possible to appeal a default judgment. Instead, you have to first make a motion in the trial court to re-open the default, and if you lose the motion, you can appeal that.
It is important to understand that, in almost all circumstances, you can only appeal based upon evidence that was submitted or at least attempted to have been submitted, during the trial.
I have found that in recent years, more and more trial courts are deciding custody cases without holding a trial or hearing. Because this is a recurrent issue in child custody cases, there are a lot of reported cases and a lot of law on the issue.
If you are thinking about appealing a Family Court custody case, you should be aware of a few things. Firstly, appellants frequently lose, even where they have identified one or more mistakes that were made by the trial court. This is because of the “harmless error rule.” This rule means that even though the trial court made a mistake, or even multiple mistakes, these mistakes were not important enough to have affected the outcome. This is especially true for evidentiary rulings in child custody cases.
Secondly, although a good appellate lawyer will always point out inconsistencies in the opposing party’s witness testimony, as shown in the transcript, it is very hard to win because of inconsistencies. Witnesses are not expected to be totally consistent in their testimony.
