Family Law Appeals Continued
The appellant should be wary of pursuing any appeal until and unless the attorney expresses the feedback that there is a strong chance of modification or reversal. That initial opinion cannot always be confirmed in the initial consultation because the attorney usually reviews the transcripts after being retained. There may be unfortunate situations that are unusual, when there is a "joker in the deck" that later surfaces in the transcripts, for example, when the appellant stated something unexpected that may become prejudicial on appeal.
Custody disputes are particularly prone to the outcome of forensic expert reports that are sealed and not readily available to attorneys who did not formally appear in the court below. It is not possible to perfect an appeal without reviewing this vital report that even the client most likely does not have a copy of. The appeal attorney must file a special affirmation to obtain the forensic report from the court below and this is another detail that may be missed by the client. The appellate division can be reasonably expected to read and review the contents of the report(s) that are just as important (if not more so) than the contents of the transcripts. There is no short-cut to this arduous process, and the client's input is important to be considered by the attorney.
There are some difficult strategic decisions that may be rendered on appeal, for example, whether to pre-empt an expected defense in the appellant's brief or, in the alternative, wait to for the reply brief to rebut the defensive points. This is best decided in collaboration with the client. Attorneys are sometimes prone to abrogating these judgment calls on their own, maybe just to avoid an uncomfortable encounter with the client. If the client is treated by the attorney as a team member on the appeal (instead of just as another job that has to "just get done") then the appeal is more likely to be successful. The client is more likely to be in tune with the detailed nuances of the case below, that may have been influenced by the political dynamics that may not be obvious from just reading the transcripts.
Any appeal in a family matter is bound to involve legal questions that pertain to difficult factual situations when the client is sensitized to the emotions between the parents. What can be challenging in these cases is when the attorney for the child who is appointed by the judge slants the version of events in a way that is not favorable for the appellant. Due to changes in the ethical rules, attorneys for children are duty bound merely to express the wishes of the child, instead of opine about the child's best interests, absent rare exceptions. Even forensic evaluations seem reluctant to recommend a definite course of action other than joint custody that is not legally viable in New York unless both parents consent to that kind of arrangement. This is why, once again, it is incumbent upon the appeal attorney to find those "hidden gems" that may be buried in the report and the transcripts also. Knowing what to look for is crucial and that depends upon close consultation with the client by an attorney who is sufficiently experienced to know the range of information to inquire.
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