Family Law Appeals
Ann Detiere has the advantage of over thirty years of practice in the family law area, with published decisions pertaining to issues about custody, relocation, child support, legal fees, marital assets, and paternity fraud. Ms. Detiere will always be your point of contact as she never outsources work to junior staff or partner firms.
The initial evaluation must begin with making sure that a timely notice of appeal was filed and served within 35 days after the notice of entry because no appeal can be pursued otherwise. It may take the Appellate Division about another month (sometimes even longer) to assign an appeal docket number to the case, after which the time period begins to accrue for the timing of the filing deadline. The appeal is deemed to be "perfected" when the appeal brief for the appellant is filed. Much work is required before the perfection, and the success of the appeal depends heavily on thoroughly reviewing the transcripts.
The timetable is set forth in the initial scheduling order, that can be extended by writing a simple letter to the assigned case manager (at least in the Second Department). Motion practice should be generally avoided for any purpose, and most certainly not for the purpose of extending the perfection deadline, absent a clear emergency. All of the trial transcripts must be purchased, and this is not some minor detail that can be underestimated in terms of overwhelming importance. Absolutely all transcripts are required to be reviewed by the appellate attorney, subject to extensive evaluation and consultation with the client. The transcripts are reviewed by the appellate division and the brief should be replete with verbatim citations to the transcripts. In addition, all the transcripts must be served on opposing counsel, with proof of service to be submitted at the perfection deadline. The transcripts must also all be filed with the court, placing a premium on making sure that no transcripts are inadvertently missed. A rushed review of the transcripts may result in missing important details, and the success of the appeal may depend upon paying close attention to these details. What may seem as a minor factual detail may loom large for a stronger legal argument.
Representing a respondent to defend an appeal is generally more expeditious because the transcripts are received from the adversary and there is no requirement of filing any reply brief in addition. The appellant has a much heavier burden to carry, not just in terms of the serving and filing all of the transcripts, but is also required to file a reply brief after the respondent files an opposition brief.
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.
Serving New York, NY, all of New York County, and the surrounding area for your Divorce & Family Law, Child Custody, Child Support, Family Law, Divorce Appeals, Family Law Appeals, and other legal needs.