Appealing A New York Family Court Custody Order

litigants seeking to appeal various types of cases

Appealing A New York Family Court Custody Order

Child Custody Articles / By Paul Matthews

litigants seeking to appeal various types of cases

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 a “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 cases 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 Divison?

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The 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. There is also special case law that says that the appellate courts should give even more deference to the trial court’s findings of fact in 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.

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.

Commending 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 attorney. There are very specific rules which include the type face that must be used, the fonts used, limitations on the number of words or pages in the brief, the way that the 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 about bookmarking and hyperlinking which are required in these briefs.

In Family Court appeals, appellate lawyers and the few pro se litigants who try to do appeals 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 all of the documents found in the court file or  create an appendix which has to be separately bound, served and filed. 

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 a lot of time and a lot of money.

Costs Of Appeals – Time And Money

It can take anywhere from six months to well over a year to 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.

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 the 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.

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 would have 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 entered some kind of 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. 

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.

I have found that in recent years, more and more trial courts are deciding custody cases without holding a trial or hearing.  Also, many Family Law cases have one or more attorneys assigned to represent the child or children. The attorney for the child is also allowed to appeal the Court’s Order or judgment.  Post navigation

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