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Appeals


Frequently Asked Questions [FAQs]



What is an appeal?


An appeal is a procedure by which a party who has been adversely affected by what he or she believes to have been an error or mistake by a judge of the Family Court may seek to have that order overturned in a higher court.

The party who proceeds with the appeal is called the appellant. All parties against whom the appellant seeks reversal (regardless of their posture before this court) are referred to as respondents. The appeal is not a form of new trial.

Basically, the same evidence that was before the trial court is placed before the appellate court and the parties to that appeal argue on papers and at a brief oral argument, that the trial judge, in reaching his or her decision on that evidence, did commit an error that requires reversal. This evidence is called the record of appeal (or the record).


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What rulings are appealable?


An appeal may be taken as of right from any order of disposition and, in the discretion of the appropriate appellate division, from any other order under this Act. The general rule is that an appeal may only be taken from an order. An order is a written determination of the court.


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Can I appeal an order made on default?


It has often been held that a judgment or order made on the default of an appealing party is not appealable. The remedy, instead, is to move to vacate the default order under CPLR 5015 (a) (1) and, if that motion is denied, an appeal is taken from the order denying vacatur. The rule is the same for Orders made on the consent of the appealing party.


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Can I appeal an order from a Support Magistrate?


Specific written objections to orders of Support Magistrates can be filed with the Family Court, for review by a judge. This differs from the appellate process. Once a Family Court judge has considered the filed objection, and issued a decision and order, at that point an appeal can be filed.

Sources of jurisdiction:

Family Court Act § 1112 (a) is the general provision of the Family Court Act regarding appealability. It provides that an 'appeal may be taken as of right from any order of disposition and, in the discretion of the appropriate appellate division from any other order under this act.'

The term 'order of disposition' is intended to be synonymous with a final order or judgment, that terminates an action or proceeding by granting or denying the relief demanded in the proceedings. The second sentence of subdivision (a) of §1112 further provides that an appeal may be taken as of right from an 'intermediate or final order or decision in a case involving the abuse or neglect.'


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How does a person take an appeal to a higher court?


When a person is dissatisfied with the order of the Family Court in their case, they may, under certain circumstances, take an appeal to a higher court.

This summary attempts to outline what is appealable, where an appeal is prosecuted and how the appeal process should be initiated. This summary does not, however, provide detailed information about the appeal process. Anyone thinking about an appeal should consult an attorney.

Information -- about how an appeal is to be argued, how many copies of the appellate briefs must be filed and similar matters -- may be obtained from the Appellate Division.


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What is the time limit to file an appeal?


An appeal from the Family Court must be taken:


  1. Within 30 days after service by a party or a Attorney for Child upon the appellant of the order sought to be reviewed;
  2. Within 30 days after receipt by the appellant of a copy of the order in open court; or
  3. Within 35 days after the mailing of the order to the appellant by the clerk, whichever is earliest (Family Court Act 1113).


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How to file an appeal.


In accordance with Appellate Division Rule 670.3, one original and two copies of the following documents are to be filed with the clerk of the Family Court:

  1. Request for Appellate Division Intervention Form (RADI);

  2. Notice of Appeal;

  3. A copy of the order you wish to appeal (F-99 or Clerk's Certificates are not acceptable).

Adverse parties must be mailed copies of the above and proof of such mailing must be presented to the clerk upon filing. A receipt from the Postal Authorities is acceptable. In addition to filing the above with the clerk of the Family Court, it is wise to present an additional copy, as having been received for your records to verify your filing date.


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What is the Appeals Procedure for Pro Se Clients?


The following documents are provided by the Family Court to assist you in perfecting your appeal:

  • Request for Appellate Division Intervention Form (RADI)
  • Notice of Appeal

It is your responsibility to obtain from the court a copy of the order from which you wish to appeal.

Pro Se Appeal Procedure

You should prepare six (6) complete copies of the following documents for filing in this court: (1 original and two copies to Family Court to file on your behalf, 1 or more copy(ies) to your adversary(ies), 2 copies for your file.)

  • Request for Appellate Division Intervention Form (RADI)
  • Notice of Appeal
  • A copy of the order you wish to appeal
  • A receipt from the Postal Authorities of mailing to your adversary

You MUST mail to your adversary a complete copy of the Request for Appellate Division Intervention Form (RADI), Notice of Appeal and a copy of the order from which you wish to appeal.

IF YOU WISH ASSIGNMENT OF FREE COUNSEL YOU MUST FOLLOW THE FOLLOWING INSTRUCTIONS:

Instructions For Asking For A Free Attorney On Appeal From The Family Court After The Notice Of Appeal Has Been Filed

If you wish to apply to the Appellate Division to file as a “Poor Person” and request that an attorney be assigned to prosecute your appeal, you must follow these additional instructions:

  1. Within Ten (10) Days after the Completed Documents Have Been Presented to Family Court, write a letter to the Appellate Division asking for assignment of a lawyer and a waiver of the filing fee;
  2. Completely describe your financial situation in the letter and try to explain why the Family Court was wrong ( you may attach documents regarding your finances);
  3. Have your signature notarized;
  4. Attach a copy of the order of the Family Court from which your are appealing and a copy of the notice of appeal:
  5. Include a SELF-ADDRESSED STAMPED ENVELOPE.
  6. Mail your letter to the appropriate Appellate Division for the county in which the order was entered.


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