Can I appeal a Child Custody Decision?

Can I appeal a Child Custody Decision?

I am often asked whether my client should appeal their New York child custody decision.  If you are in Family Court, or in Supreme Court, and if you have undergone an evidentiary  custody trial, or fact-finding, the court will render a Final Decision which will later be settled as a Final Order.  You are bound to comply with that Order. However, if the court arrived at the decision in error, whether in law or in fact,  you may file an appeal.

Usually, appeals are filed against final orders. However, temporary orders may also be appealed if there was judicial error, but you cannot appeal them as a matter of right.  Rather, you must make a motion to the Appellate Court which governs your geographical area,  for permission to appeal, which is often times called a motion for leave to appeal.

There is a specific procedure in place to initiate and perfect an appeal. These rules must be adhered to or else you risk having your appeal dismissed. After you have received the Final Order or Judgment which you wish to appeal be sure it was done upon Notice of Entry.  You want to appeal from a Final Decision and Order  within thirty days from the date it was entered with the Court Clerk.  Usually, your thirty days will start to run from the date you were actually served with the Final Order or Judgment with the Notice of Entry.  

An appeal will lie when a judge has made a substantial mistake in your case, which resulted in harm to your position taken at trial. The mistake can either be legal or factual.

In New York, we have four Appellate Divisions that hear cases throughout the state of New York. The four judicial departments that hear appeals are the First department, which hears cases from Manhattan and the Bronx, the Second department which governs cases that arise from Queens, Staten Island, Long Island, and Westchester.  We also have the Third Department and the Fourth department which hears cases in upstate New York depending on the geographical area.

Each Appellate Division has  its own set of court rules. Each appellate division also lists all of its rules on their respective webpage, and I find that their webpages are very user-friendly. However, it is best to seek an appellate attorney to consult with before you attempt to appeal a decision or defend one on your own. 

In my legal experience and opinion, as a New York divorce lawyer and New York child custody attorney it is very difficult to get an Appellate Division court to overturn a prior custody decision made by the lower trial court.  In fact, it is often more difficult to file a successful appeal in a child custody case than any other kind of case because the trial judges in Family Court are given great respect and deference in the way that they heard the case, managed the trial, and handled the litigants. In Family Court or in Supreme Court,  the trial judges often are the same judges that preside over the entire case so that these judges have a unique perspective and first-hand observational knowledge of what occurred between the parties, and this is given great weight by the Appellate Division.

In an appeal involving children, the attorney for the child will often appear in the appeal as well to file a brief. Often times their position is identical to that taken at trial, although this may vary, depending upon the facts of the case.

The filing of the Notice of Appeal in the Court where the decision was made is just the start of this sort of litigation. Do not think that filing a Notice of appeal means that you have successfully appealed your case decision.   This would be a fatal assumption.  Once the Notice of Appeal was filed, you must still perfect your appeal by filing a brief within the timeframe imposed by the appellate division court order. The appellate division will provide a scheduling order for the parties to follow. Often times it is within 3 to 6 months from the date of the filing of the notice of appeal but again, this depends on whether or not a motion to stay has been filed or there are other factual considerations to be made.  I have seen appellate Divisions give as little as sixty days to perfect an appeal, it all depends on the facts of your case. Adhere to the Appellate Division Scheduling Order. But if you cannot perfect your appeal on time you are allowed to make an application to enlarge the time in which you must protect the appeal and these enlargements are sometimes granted  on good cause shown. 

The filing of an appeal is hyper technical. As you can see from the courts website, there are particular rules that control which limit anything from the number of words you can use,  the type of font you can use, and the way your appellate brief will be presented to the court. The rules governing the formatting of the brief, the way your points are laid out, your Table of Contents and the Index requirements are extensive, and you must take particular actions in this regard so as not to fall short.   The  printing of the transcripts and the brief is also complicated and often times requires retaining a printing company to assist in the preparation of the settlement of the transcripts and the filing and service of the Brief. In short, appeals are very expensive, and should not be considered lightly. 

If you are appealing in Family Court it is important to note that appeals from a family court decision are a tad bit easier than an appeal from a Supreme Court decision. In Family Court, the parties have the right to appeal from what is called the original record. Generally speaking, the Appellate Division will assign a case worker who will manage the file. Still, it is better practice to subpoena the Family Court file and follow up to make sure the file makes its way to the courthouse file manager.

Lastly, the Appellate Division normally requires that the appealing party serve and file multiple sets of transcripts of the lower court’s trial proceedings. As such it is always a good idea to start ordering and gathering all the transcripts of the trial and even those transcripts of earlier pretrial proceedings which you think might support your case.

If you have clear judicial error, and if you can prove it, then you can file an appeal. But in my opinion make sure you have consulted with a New York child custody appellate attorney or New York custody appeals attorney and that you have fully familiarized yourself with the Appellate Division rules.  I find the Court Clerks to be extremely helpful. However, know in advance how complex, expensive, and time-consuming it is to appeal and be sure that your decision to appeal is based upon your review of viable judicial error or mistakes made as to facts and law. That said, you cannot just appeal from a lower court decision because you did not like the fact that you lost the case.   In fact,  is not enough to file an appeal where there is no merit to it as that could lead to the imposition of attorney’s fees or sanctions if the appeal is deemed frivolous.  Toward that end, interview lawyers who have your best interests at heart and good luck.  I hope this helped explain a rather complex area of law. This is for informational purposes only and is not intended as legal advice and so consult with the best divorce or child custody attorney of your choice before taking action on anything stated in this article.

Dated: October 3, 2023

By: Lisa Beth Older, Esq. 

Your child custody appeal lawyer

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