Understanding Appeals in Family Court: Definition, Process, and Your Rights
Definition of an Appeal
An appeal is when you ask a higher court to review or look at, an order, or decision, made by the court you went to first. You ask for a review if you think the first court made a mistake.
Who Can File an Appeal?
Petitioners and Respondents
In a Family Court case, a petitioner or a respondent can file (ask for) an appeal. A petitioner is the person who started the case in Family Court. Here, respondent refers to the person the original case was against. Petitioners or respondents may file an appeal after the judge makes a final decision that is not what they wanted. This is called an adverse decision. A final decision is made after the entire case is finished and there are no more court dates.
Getting a Lawyer for Your Appeal
Poor Person Relief
If you want to appeal your case, it is important to speak with your Family Court attorney (lawyer) first. He or she has to start the appeals process for you. If the court gave you a lawyer or if you had a lawyer from a legal services provider (such as Legal Aid Society) representing you in Family Court, that lawyer is required to help you start the appeal.
If you argued your case pro se in Family Court, but want to be assigned a free lawyer for your appeal, you can apply for poor person relief. Pro se means without a lawyer. If you get poor person relief, you will get a free lawyer and a free copy of your transcripts. You will not have to pay the court any money for the appeal.
Pro Se Appeals
He or she must tell the Appellate Division that you were represented by an attorney who provides legal services to the poor. The Appellate Division is part of the Supreme Court. It is the court that will hear your appeal. It will also decide if you can get poor person relief. This means your income is low enough to get free legal services. If the court decides your income is low enough, it will assign you a different lawyer.
Grounds for an Appeal
Mistakes in Facts or Law
You cannot appeal an order or decision just because you do not like it. You must have grounds, or legal reasons. The mistakes described in the first question of this guide are grounds. Also, you can only appeal if you objected to the same mistakes during the trial.
Objecting During Trial
Objected means let the judge know you had problems with something. This is called preserving an issue for appeal.
Preserving Issues for Appeal
Where Appeals are Heard
Appellate Division of Supreme Court
Most appeals of Family Court cases are heard by a part of the New York State Supreme Court called the Appellate Division.
First and Second Departments
If your case was in the Bronx or Manhattan Family Court, the appeal will be handled at a court called the First Department. This court is located at 27 Madison Avenue, on the corner of 25th Street in Manhattan. If your Family Court case was in Brooklyn, Staten Island, or Queens, your appeal will be handled at a court called the Second Department. This court is located at 45 Monroe Place in Brooklyn.
Possible Outcomes of Appeals
Reversing, Remanding, Affirming, Modifying
The Appellate Division may reverse, remand, affirm, and/or modify the decision of the Family Court, or parts of the decision.
Reverse means the Appellate Division decides that the decision of the Family Court was wrong.
Remand is when the Appellate Division tells the Family Court to hear the case again.
Affirm is when the Appellate Division says the Family Court made the right decision.
Modify is when the Appellate Division changes part of the Family Court decision.
Starting the Appeals Process
Notice of Appeal
The first step is to serve the respondent in the appeal with a Notice of Appeal. This is a document that tells the other person in the case that you are appealing.
It must include:
- Your name
- The order you are asking the Appellate Division to review
- The date of the order
- The court that entered the judgment (made the order)
- The name of the court that you are asking to review your case on appeal
If the final Family Court order was given to you in court, you must file the Notice of Appeal within 30 days. If the order was mailed to you by the court, you must file the Notice of Appeal within 35 days from the day it was mailed. You have the same time limits when you want permission to appeal a temporary order.
Next Steps After Filing Appeal
After you file your appeal, you must get a full record of your case, including the transcripts. You will have to pay for transcripts unless you got poor person relief.
Perfecting Your Appeal
You must then perfect the appeal. For some people, this means prepare a full record of your case including a brief. A brief is a written legal argument that explains the reasons for your appeal.
Responding to an Appeal
If you are responding to an appeal, you usually have about a month from the day you get the brief from the appellant to file your brief. The court will tell you how long you have. After you file your brief, the appellant has about 10 days to file and serve a reply brief.
Stays and Appeals
What is a Stay?
Filing a Notice of Appeal does not stop a Family Court order. If you want to put the order on hold, you must file an application for a stay. A stay is when the family court delays putting the order into effect for a short time.
Applying for a Stay
Stays in Abuse/Neglect Cases
Sometimes a Family Court or the Appellate Division issues an order to return a child who had been placed in foster care. In those cases, the court will issue a temporary stay of the order until 5:00 pm of the next business day.
Stays for Child Support
When you apply to stay a child support order, the Appellate Court’s decision may be based on the kind of financial guarantee you can give that you will pay the money ordered by the Family Court. The Appellate Court can order the Family Court to hold the money in a special account, called an escrow account. It can also give the payments to the person named in the order.
Appealing Child Support Orders
Yes, but before you appeal a child support order, you must first file an objection asking a judge in Family Court to review the order made by the support magistrate.
If a judge made a decision in my case when I was not in court, can I appeal the decision?
Not right away. When you do not come to court, a judge can make a default judgment. This is a decision against you because you were not in court. If you want to cancel a default judgment and reopen the case, you must first file a motion to vacate a default judgment in Family Court. If the Family Court says no to your motion, you can appeal the decision.
Appealing Temporary Orders
Abuse and Neglect Cases
In abuse and neglect cases, you have the right to appeal a temporary order or a final order without asking permission from the Appellate Division. For example, if a judge decides that you have abused or neglected your child and issues an order that temporarily places your child in foster care, you are allowed to appeal that decision.
Appealing to Court of Appeals
Sometimes people who are not happy with the decision of the Appellate Division of the Supreme Court can go one step higher to the Court of Appeals. The Court of Appeals hears very few cases each year. You have to get permission from the Court of Appeals to appeal the case.