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Can I appeal a Custody Order?
August 15, 2017

Are you thinking of filing an appeal because you are dissatisfied with what happened in family Court? If so you might be able to go to the Appellate Division if you are aggrieved by the Lower Court Decision.

However, you cannot just appeal if you think the court made a mistake, you have to prove the mistake. You cannot just assume the Decision is wrong just because it seems unfair, even if it is unfair. This is because the trial court has ultimate power to judge the credibility of the witnesses that come before it. The trial court has a lot of discretion to decide what it wants to decide. But even the trial court has to follow strict rules and if you think they did not then you can file an appeal.

Appeals are very difficult and they entail a lot of civil procedure that the normal out of court lawyer might not be familiar with.

If you are thinking of a custody appeal then the best trial custody or divorce lawyer will tell you that you should order the trial transcripts right away, do not wait. That is because a trial decision on custody often requires that you act on an emergency basis and file a motion pending the perfection on the appeal.  Any if you wait too long to act the Appellate Division, acting on your a motion to stay the Decision will ask you if this is such an emergency why did you wait a month before doing something about it.

You should also consult the Appellate Division Rules of Procedure and speak to an appellate lawyer in New York. The reason for this is that each Division of the Appellate Division has different rules and different ways to go about perfecting your appeal.

The State of New York has four Appellate Divisions. The First Department is where you go if your case was decided in Manhattan or the Bronx.  The Second Department covers Nassau County, Suffolk County, Queens County, Kings County (Brooklyn), Richmond County (Staten Island), Westchester County, Rockland County, Orange County, Dutchess County and Putnam County. It is a big and busy department that respects timeliness.   The Third Department and Fourth Departments is in upper New York and the Fourth Department generally is far up in the NW counties of New York State.

Appeals are started by the filing of a Notice of Appeal which must be filed in the court of origination along with a Request for Appellate Division Intervention which must be filled out, a copy of the Decision appealed from, and an Affidavit of Service that you served the papers before filing it.  You have to do that in 30 days from the date you were served the Decision.  After you do that you have to prepare a brief anddo a number of other things to perfect your appeal within the time constraints set out under the law.

Perfecting the appeal entails many things including but not limited to settlement of the record and the printing of briefs that set forth the law and the reasons you believe the Lower Court made reversible error. The time to perfect the appeal is controlled by the State Appellate Department so you should check their wenbn site under Rules and Procedures.  The other side of the case gets to answer and you get to submit a reply brief on any new issues the other opposing side raises that were not addressed in your initial brief. Then you get to make an oral argument and then you wait-for your Decision.

If you do not like the Decision then of course you must do a motion for leave to appeal to the highest court in New York which is the New York Court of Appeals.  But mostly the Appellate Division is the last stop for your case.  Speak to an appellate lawyer in New York if you are thinking of appealing a final order from Supreme Court or Family Court.

By: Lisa Beth Older

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