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HOW TO APPEAL A CHILD CUSTODY CHILD VISITATION OR CHILD SUPPORT CASE
January 19, 2018
Family courts and Supreme Courts rule on child custody and visitation cases. They rely on the best interests of the child rule set forth in the case law to rule on what custody arrangement they think is best for the subject child. The trial courts evaluate many different considerations and may fashion a joint custody ruling that includes a parenting schedule. They have an enormous amount of power and discretion to fashion their custody order.
The Courts also rely on the testimony of each respective parent and the witnesses called at trial, the representation of the child’s attorney as to preference of the children, and forensic court appointed experts who perform evaluations. Sometimes, a court might appoint a second expert if the first expert opinion is tainted or unreliable. It is up to your divorce or child custody attorney to ensure that the forensic report rendered by the court appointed expect is thorough, and your attorney should further ask to see the notes as well as the forensic report upon which the expert relied to arrive at his or her opinion as to the parties’ fitness.
It is not easy to overturn a custody determination and it requires more than just an adverse ruling against you. When you are the losing parent in New York you have the right to appeal on certain circumstances but you must show that it is more than just your disagreement with the Judge. You must show that there was an error in law or that the record does not substantially support the factual findings of the Court.
Another consideration is timing-in New York you have thirty days to file your Notice of appeal. If you run the time to appeal you will not be able to appeal without leave of court.
You must also consult with the Appellate Division in whatever department your case is heard as each department has its own rules as to what they need in order to perfect your notice of appeal in the appellate division. Your first stop is usually the trial court. They get the first Notice of Appeal that you file. Be sure to attach the Decision you are appealing from along with an Affidavit of Service proving that you served your notice of appeal on your adversaries.
But the Appellate Division also has its own rules as to how to go about filing the Notice and typically the rules require that you to file a copy of the Notice of Appeal as well as the Decision and Order with the Appellate Division as well, along with the Affidavit of Service.
The Appellate Division will also have you file what is called a Request for Appellate Division Intervention, which is a form requesting additional information about your case and the issues you wish to appeal.
After the Notice of Appeal is properly filed in both courts and if it is filed correctly, the Court will issue a scheduling Order to let you or the attorneys involved know when they must file their appeal briefs. If your case was tried in Family Court in New York the Court will often times assign your case to a case manager.
Usually, each Appellate Division in New York has its rules of procedure listed on their respective website, and these rules are also applicable, really to any appeal you might take.
Another consideration other than timing is that you be sure that the Order you are appealing is a final order rather than a temporary order as you can not appeal a temporary order without first making a motion for leave or permission to appeal. You might ask, what is a final order. The answer is that the Order is usually final if it includes a determination after trial of all the related issues in the case. It will also usually state Final Order and Decision in the upper right-hand corner of the Decision,
Appellate practice is complex and you should consult with an attorney before endeavoring to file an appeal. It is also an expensive venture and the cost is often times dependent upon the number of dates of trial, the number of transcripts involved and the number of pages of transcripts to be reviewed. There are also printing charges that might be prohibitive. If the Decision just does not make sense given the testimony then you should consult with an attorney to see if it can be appealed. If you are indigent and cannot afford an attorney you can make an application to the Appellate Division for appointment of a free lawyer and for costs
Before you file an appeal brief you must settle the transcripts on the opposition counsel and attorney for the child. You should always order the transcripts of the Fact Finding from the stenographer as soon as possible as you cannot file a brief without submission of said transcripts.
In your child custody and visitation brief you cannot introduce new evidence and the Appellate Court will rely upon the various briefs and the transcript record and evidence admitted at trial in making its decision. If they find the court erred the Appellate Division can reverse the decision, affirm the decision or send it back to the lower court for reconsideration.
By Lisa Beth Older
This information is not legal advice and you are recommended to seek legal counsel as each case is very different.