Divorce and Family court don’t always turn out the way you expect. While it’s a given that at least one of the parties is not going to get everything that they wanted, what happens when a decision is made but there was an error, or the judge mishandled the case?

If you feel that your divorce or family law case was not handled appropriately or some issues affected the outcome such as a violation of rights or errors were made, you may have grounds to appeal the decision.

If you believe you are a good candidate for an appeal, here’s what you need to know.

What is an Appeal in Divorce or Family court?

An appeal is a request for a case to be heard again because one or more parties to the case believe that there was a legal mistake, the judge mishandled the case, or there were other factual or legal issues that resulted in an unfair or erroneous decision or judgment. An appeal challenges those issues or mistakes and asks an appeals court to review the case.

The person who files the appeal is called the appellant. The other party or parties in the appeal that the appellant is seeing reversal against are called appellee(s) or respondent(s). 

It is important to understand that an appeal is not a new trial. The same evidence from the original trial is presented again so it can be re-reviewed to identify any errors or mishandling of the case.

Divorce and Family law cases can last years, so there are often many hearings, negotiations, and motions filed. Because of this, they can be very complex and complicated. This leaves a lot of room for human error in even the best circumstances.

What is the Appellate Division?

The New York State Appellate Division is comprised of four departments. Each department has its own set of guidelines and rules. These divisions are:

First Department – makes appeals decisions from courts in the Bronx and Manhattan Counties.

Second Department – makes appeals decisions from courts in Richmond, Kings, Queens, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam Counties.

Third Department – makes appeals decisions from courts in upstate New York.

Fourth Department – makes appeals decisions from courts in upstate New York.

The Appellate Division handles criminal cases, civil cases, New York State trial courts, Supreme Courts, and Family Courts. 

Can you Appeal a Family Court Decision in New York?

New York law does allow for certain family law decisions to be appealed:

  • Final judgment which is the decision of the court that resolves or settles all issues in the case. 
  • Interlocutory judgment which is not a final judgment. This means either all of the issues of the case are not settled, or the case requires further action by the court to settle the issues.
  • Motions that are made on notice to the other party, adversely and substantially impacting the right of the appellant.

Non-final and non-dispositional orders are not appealable in New York. However, the person wishing to file the appeal may obtain permission from the court to file an appeal on these types of orders.

There is an appeals process that must be followed and the person who is filing the appeal must provide grounds for the appeal and evidence to support it. Because of the potential complexity of an appeal and the appeals process, it is highly recommended that you hire an attorney to handle it to ensure that the appeal is done correctly and that your rights are protected.

What Types of Family Court Cases can be Appealed in New York?

Supreme and Family Law Court sees a lot of different types of cases such as divorces, adoptions, child support, annulments, separations, and many others. Many of these are pretty straightforward and it is not likely that the parties involved would feel that their case was mishandled or that there was an error, therefore, an appeal would not be necessary or warranted.

However, there are other types of cases that, due to their complexity, could have issues that would warrant an appeal. Some of these types of cases are associated with divorces, separations, and other family law matters.

Most divorce and family law cases can be appealed, including:

  • Equitable distribution of property
  • Alimony
  • Time-sharing
  • Abuse and neglect
  • Child custody
  • Visitation
  • Family offense
  • Child support
  • Guardianship
  • Paternity
  • Termination of parental rights

In cases that involve children, the priority of the court is to determine what is in the best interest of the child. While the judge does carefully consider many various factors involving these cases before making his or her decision, sometimes an appeal is necessary to change an arrangement to better fit the child’s needs.

What Decisions Cannot be Appealed?

Some decisions are not eligible for appeal, such as an order or judgment that is made on the default of the appellant. This does not mean it can’t be changed, but it does go through a different process.

Under CPLR 5015 (a) (1) a motion can be filed to vacate the default order. An appeal can be filed if that motion is denied. 

What are the Grounds for Appeal in New York?

There are many different reasons that an individual may feel that they need to appeal their divorce or family court decision. An appeal does not mean there is a new trial or hearing, it is not a “do-over,” it just means that the case and the decisions made during the trial are reviewed by a higher court. No new evidence is introduced. It boils down to these main categories:

  • Failure to properly assess certain factors when determining what is in the best interest of the child.
  • Errors committed by the judge.
  • Failure to address the other party’s improper conduct.
  • The judge in some way mishandled the case.
  • Evidentiary issues such as failure to allow relevant evidence.
  • Ineffective assistance of counsel.
  • Misapplication of the law to the facts of the case.

Any of these can be serious issues that dramatically affect a divorce or a family court case, especially when children are involved. 

What are the Three Decisions that can be made on an Appeal?

When a person appeals a decision, the Appellate Division can issue one of three decisions:

  • Reverse the Judgment or Order.
  • Modify the Judgment or Order
  • Affirm the Judgment or Order (no action)

If the order or Judgment is reversed, the Appellate Division will typically order a new trial and include some instructions. However, it does have the power to make a decision based on its own findings of fact, so if it has enough information, it may not send the case back to the Divorce or Family Court and instead modify the judgment or order, although, this rarely happens.  

How Often is an Appeal Successful?

Different types of cases have different success rates. The Appellate Division generally upholds the Divorce or Family Court’s findings of fact. An exception to that general rule is if there is a clear error in the Court’s findings of fact.

Some decisions, such as child custody, are very difficult to overturn on an appeal because certain laws require the appellate courts to give greater deference to the findings of fact of the trial court in such cases. The reason for this is due to the nature of child custody cases which are primarily based on the character of the parties involved (typically the parents of the child). The trial judge handling the case is able to observe the parties throughout the various court appearances and get to know them.

This also happens with visitation cases.

However, if there is an issue with the law, then the Appellate Court is required to give greater weight to the law.

What is the Timeline for Appeals in New York?

If you wish to appeal a decision in your Divorce or Family Court case, you only have a limited amount of time. The situation determines the timeline:

  • Within 30 days after the copy of the order in open court is received by the appellant
  • Within 30 days after service to an attorney for the child or a party of the case upon the appellant of the order that is requested for review
  • Within 35 days after the order to the appellant is mailed by the clerk

What is the Appeal Process in New York?

The appeal process is very complicated and certain requirements must be met. Often the party who wishes to appeal the case relies on their attorney to handle it because they have experience in the process and have the education and knowledge to ensure that every step is handled appropriately.

  1. File a Notice of Appeal – this is done by the party that is seeking the appeal or their attorney.
  2. File the Record and Legal Brief – this is also done by the party that is seeking the appeal or their attorney and includes all the papers that the court considered when it decided the case the first time. It also includes a transcript of the court proceedings. The Legal Brief provides all the factual and legal arguments that are being used to support the appeal.
  3. The other party files their own Legal Brief – this is not required, but the other party can file their own factual and legal arguments regarding why the decision of the lower court should be upheld and the appeal denied.
  4. Appellant files Responsive Brief – this allows the appellant to address the arguments that the other party raised when opposing the appeal.
  5. Oral Arguments – the attorneys for the parties involved or the parties themselves are given the opportunity to highlight the issues they feel are most relevant and impacting the appeal as well as respond to questions that the judges who are hearing the appeal may have. The judges will also consider the information submitted by the parties, including the record and each side’s legal briefs and responsive brief.
  6. The Court Makes a Decision – the Appellate Court may decide to uphold the decision, modify it, or reverse it entirely.

In some cases, the appeal decision can be appealed again to the Court of Appeals, but this is extremely rare in Divorce and Family Court.

Are there Disadvantages to Filing an Appeal?

There can be some disadvantages to filing an appeal. There is no guarantee that it will be successful and considering the cost (appeals can be expensive) you may decide it’s not worth it. The cost is often prohibitive for many people. The party that is filing the appeal has to pay for the assembly of the record, the transcript, and the appellate printing services. This is in addition to attorney fees. 

If the appeal is accepted and a new trial is ordered, there are fees associated with that as well, including court costs and attorney fees.

Also, a successful appeal may not give the appellant everything that they wanted or pursued the appeal to receive. The order could be modified or only a portion of the relief requested might be granted and the rest will be affirmed.

Before pursuing an appeal, make sure you know what you are getting into and ensure your expectations are realistic.

What is the Best Way to Win an Appeal?

There are some things you can do that may increase your odds of winning your appeal. Keep in mind though, there are no guarantees but this is a very good start:

  • Hire an experienced Divorce or Family Law attorney who has experience with appeals.
  • Determine the grounds for your appeal.
  • Build your case with solid arguments.
  • Be mindful of even the most minute details because the courts and the appellate court will scrutinize everything.
  • Keep a realistic mindset about all the possible outcomes for your appeal and realize that you may spend a lot of time and money and still not get what you want.

New York Divorce and Family Court Appeals FAQ

These are some commonly asked questions about appeals in New York.

How do you write a notice of appeal? The Notice of Appeal is a form found on the NY Courts Forms page. A notice of appeal must be drafted property. Check with the court where you are filing the appeal to make sure you have what you need. Generally, your notice of appeal should contain the following information:

    • Index or docket number
    • Name of the case
    • Name of the person filing the Notice of Appeal
    • The judgment or order being appealed
    • Date of the judgment or order
    • The name of the court that entered the judgment or made the order
    • The name of the court being appealed to

Who can File an Appeal? 

Any party in the case can file an appeal.

What is the First Step in Preparing to File an Appeal? 

Ideally, your attorney will handle your appeal to ensure that it is done correctly and on time. However, if you attempt it yourself, there are several things you need to do before you begin. Review the appeals process so that you know how the process works and what information you will need. Make sure that you are within the appropriate timeframe and have not missed any deadlines. 

Will the Same Judge Handle the New Trial? 

In many cases, yes. If the case is sent back by the appellate court for a new trial, it is typically sent back to the same judge. There are some exceptions though. If the appellate court believes that the judge mishandled the case or that there was a serious error in the judge’s decision, the new trial may go before a different judge.

Experienced Divorce and Family Law Appeals Attorney in Brooklyn, New York

If you want to appeal your divorce or family law case, we can help. We have the experience, knowledge, and skill to handle your Divorce and Family law case from start to finish, including any appeals. We understand that divorce and family law cases can be very emotionally charged and exhausting, so we provide our clients with compassionate, professional representation through the process. Whether you are modifying child support or appealing a child custody decision, we can help.

You have enough to worry about. Call The Litvak Law Firm today at 718-989-2908 and let us handle your appeal so you can take care of the important things – like your family.