How do family law appeals work in New York?

Appeals from decisions of the Supreme Court in a divorce or appeals from Family Court orders in New York are challenging. It is very important to properly serve and file the right documents, according to the deadlines in order for your appeal to be able to proceed. It is always advisable to use an experienced matrimonial or family law attorney whenever you are involved with a family law case in court. This is especially true for appeals which are highly technical in nature. This blog entry is intended to be used for information purposes only and not as a substitute for a consultation with a New York City, Long Island or Nassau County Family Law Attorney.

To be able to proceed with an appeal in New York, the person appealing must be a party that was aggrieved by the court order that is being appealed. An aggrieved party is someone that did not get all the relief they requested at the trial court. Once you determine that you are an aggrieved party then you have to make sure the order is appealable at this juncture. The general rule is that temporary Family Court orders, except for a temporary support order, are not appealable. But, even when temporary Family Court orders of support are appealed, the Appellate Divisions will usually encourage the resolution by recommending a speedy trial. Temporary orders issued by the Supreme Court, however, are appealable. Often times the speedy trial recommendation to resolve the temporary order appealed from might still be the solution decided by the Appellate Court. Almost all final judgments are appealable and any temporary orders that necessarily effected the final judgment can be reviewed on appeal of that final judgment.

Consent orders, stipulations, ex-parte orders or default orders are generally not appealable right away. Often times a motion to vacate the order in the trial court would be a required first step. In the case of a default judgment, for example, the defaulting party should make a motion to vacate demonstrating an excusable default and a meritorious defense. If the motion to vacate is denied, then the person might be an aggrieved party with an appealable order. Again, the advice of a divorce or family law attorney familiar with appeals should be sought to help make these determinations.

The rules of the Appellate Division in which the appeal belongs should always be consulted prior to starting the process. New York is divided into four Appellate Divisions. The First Department covers New York County (Manhattan) and the Bronx Counties. 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.  The Third Department and Fourth Departments cover upstate New York with the Fourth Department generally being the North West counties and the Third Department generally being the North East counties of New York State.

Appeals must be initiated within thirty day of the service of notice of entry of the order to be appealed from. The appeal is initiated by serving on all other parties and counsel a notice of appeal and request for appellate division intervention or RADI. These forms are available on the court’s website and each department’s rules should be consulted on the proper forms to use. After the appeal is initiated then the appealing party will need to perfect the appeal. Perfecting the appeal requires preparing the record, briefs, service on the other parties or counsel and filing it with the appropriate appellate division. The time to perfect the appeal is governed by the rules of the specific department. The other parties to the case will have the opportunity to file their own briefs either supporting or opposing the appeal. The appealing party will usually then have a chance to submit a reply brief to any opposition.

Stays pending appeals can be requested. Counsel or a party should take the order and notice of appeal, notify counsel or opposing parties that you will be at the Appellate Division, and fill out an interim application for expedited relief. Once the adversaries arrive or are given an opportunity to come everyone will usually speak with a law assistant at the court. There might be oral argument or an interim stay right away. A motion for a stay can be made if one is not granted right away.

The New York Court of Appeals is the highest appellate court in New York State. Most of the time, the respective Appellate Divisions are the final word on how an appeal is decided. At times, the New York Court of Appeals will weigh in on questions of law if review is sought. The foregoing was a brief general overview of the appeals process in connection with New York family law. Feel free to call our office or another New York family law appellate attorney with more specific inquiries.

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