Appealing A New York Family Court Custody Order

litigants seeking to appeal various types of cases

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). 

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 that the trial court committed some kind of error or multiple errors. 

In New York State 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.

For more information about custody cases click here

What Is The Appellate Division?

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 Westcheter 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 convice 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 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 same law pretty much applies to visitation cases as well. 

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.

Commencing and perfecting an appeal

An appeal is commenced by service and filing of a document called a “Notice of Appeal”. This is a fairly simple form, but it is crucial that the Notice of Appeal be filed and served 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.

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.

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.

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. 

Parents who wish to appeal divorce judgments cannot use the original record method, so these appeals are typically even more expensive. 

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.

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 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. 

Costs Of Appeals – Time And Money

It can take anywhere from six months to well over a year to perfect the appeal and get a decision from the Appellate Division. Unfortunately for the appellant, most cases are “affirmed”, which means the party appealing has lost.

 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.

Sometimes a case is resolved in the trial court without a trial being held. If the case was disposed of by a motion made at or near the beginning of the case, there may be no transcripts, or almost no transcripts, so the appellate process can be much faster. However, there can still be delays for various reasons. 

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 $200.00 an hour.

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. 

Common Issues That Come Up In Child Custody Appeals

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 a even good faith effort to convince the appellate court that the law should be changed.

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. 

I am an experienced trial and appellate lawyer who has handled a number of appeals from the Family Court. I offer a free initial consultation by phone or Zoom. You can call me at (347) 461-0760.

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