How Family Court Appeals Work
An appeal in the context of the Family Court is, simply put, the process through which one challenges the decision of a lower court judge. In a purely legal sense, an appeal does not involve a retrial of the case, nor does it involve any new evidence being introduced. The decision can only be reversed if the appellant (the party filing the appeal) can show that the lower court judge made a legal error in rendering his or her decision, although the rules may differ somewhat among jurisdictions. In the most basic sense, the petitioner (the party filing the appeal) must show that the judge abused his or her discretion in establishing the ruling. The difference between an appeal and a retrial is often difficult for the layperson to understand, but it is a vital distinction to be aware of in family law. The vast majority of decisions that are appealed to a higher court end up with the original decision of the lower court being upheld . Appellate judges do not find it sufficient merely to disagree with a trial judge’s ruling; rather, they must determine that there was some substantive legal error leading to the decision in question. There are numerous reasons a party may appeal a decision in Family Court. Common scenarios that often result in an appeal could include family court cases that involve: child custody, child support, alimony, division of assets and debts, domestic violence, prenuptial agreements and post-nuptial agreements, as well as divorce-related torts such as alienation of affection, infliction of emotional distress, intentional interference with parental relations, and criminal conversation. Whenever a family court judge makes a decision involving these issues, the parties need to understand that they have options. An experienced family law attorney can help litigants decide if these options are worth pursuing. Consulting with an experienced attorney who handles divorce and family law appeals is essential to understanding the appellate process.
Basis for Appeal
Once the decision has been delivered by the Judge or Master assigned at the trial, parties are often left wondering if there is a way to overturn that decision. Luckily, the answer is yes. However, appealing a Judge or Master is nuanced and not to be taken lightly. To start, you must have specific grounds for an Appeal otherwise your Appeal will be dismissed without hearing. No single ground for appeal is given preference under the law. A judge for family law appeal proceedings must consider the merits of the appeal in light of all the grounds as a Whole. Generally speaking, there are four grounds upon which an appeal may be based: You should be advised that the circumstances under which an appeal may be permitted and the parameters around your appeal application may vary depending on the nature of the matter that is being appealed. For example, strict timelines can be imposed by the Rules of Court or Family Court Rules after which an appeal will be denied.
The Appellate Process
The appellate process allows a party to challenge a ruling from the Family Court on the basis of legal error. An appeal cannot be used as an opportunity to retry a case. Furthermore, a party cannot appeal an order merely because they do not like the outcome. Rather, you must have valid grounds to support your appeal.
If you believe that any of the above errors occurred, then you may file an appeal within 30 days of the date of the ruling. For Child Support Orders, you have 30 days of the date of entry of the order. For all other orders, you have 30 days of the date of entry of the order.
To start the process, you will need to fill out a Notice of Appeal, Representation Statement, and Case Information Statement. These documents will need to be filed with the Clerk of the Appellate Division, and copies served on the other party. It is extremely important that you follow the exact procedures in filing these documents. Otherwise, your appeal can be dismissed.
The Appellant’s Brief and Appendix to the Brief must be filed within 45 days of the date the Notice of Appeal was filed or served. The respondent’s Brief is due 45 days from the filing of the Appellant’s Brief. The time for filing the Briefs may be extended under limited circumstances, but the Appellant’s Brief must be filed within 90 days of the date that the Notice of Appeal was filed or served. After the respondent files their Brief, the Appellant is entitled to file a Reply Brief within 20 days.
Once all of the briefs have been submitted, they will be reviewed by the Appellate Division. The first question the court will consider is whether the case warrants oral argument. In other words, the court may decide that the written briefs sufficiently address the issue, and oral argument is not necessary. If oral argument is granted, the Appellant’s attorney may have up to 15 minutes to argue, while the Respondent’s attorney will be given up to 10 minutes. Further, the Appellant’s attorney will be given 5 additional minutes for a rebuttal.
After hearing argument, or after the submission of the briefs if the court decides that oral argument is not necessary, the Appellate Division will issue a written opinion.
More than likely, the Appellate Division’s ruling will not end the appellate process. Both you and the other party have the right to further appeal to the New Jersey Supreme Court. The parties are entitled to file a Petition for Certification within 20 days of the issuance of the Appellate Division’s opinion. The Supreme Court does not have to accept the appeal. In fact, they only accept approximately 5% of all Petitions for Certification, so further appeal is only warranted in rare cases.
Throughout the entire appellate process, there are strict deadlines and procedural rules that must be adhered to. Failing to comply with these rules can result in your appeal being dismissed. Therefore, the assistance of a qualified New Jersey appellate attorney is essential.
Pre-Appeal Preparation
In addition to gathering the relevant documents, it is just as important to develop a strong affirmative case in support of the issues you are seeking to appeal. Take the time to brainstorm on all the issues you are appealing, and develop an approach on how to deal with each of the issues. This may mean creating an outline or plan in writing on how each issue should be addressed.
With regard to your burden to demonstrate any errors in the Family Part Court’s decision, as previously discussed, do not forget to devote sufficient time to brief what you believe the trial court got wrong in your case. Determine what factual findings the trial court made that were not supported by the evidence, or what aspects of the court’s legal conclusions were incorrect in your opinion.
In the event that your family court appeals attorney has decided to seek oral argument for your appeal, be sure to prepare in advance for the oral argument with your attorney. This may include creating an outline of all of the arguments that need to be made on the record during the oral argument, as well as discussing which of the issues being appealed you have the stronger argument for, and which matters should be considered secondary. In addition, both at the oral argument and possibly before, you should prepare yourself for any questions the appellate judges may ask. Take the time to gain an understanding of the types of questions that the appellate judges may ask during oral argument, in order to be as prepared as possible at the time that you appear in the appellate court.
The ultimate result of your appeal will most likely fall under one of the following scenarios:
- Your family court appeal was successful: If you are successful on appeal, depending on the nature of the relief sought, the appellate court will remand your matter to the family court with specific instructions to provide the relief you were granted.
- The family court decision was upheld: If the family court decision was upheld, the case will get dismissed, and the prior decision will stand in full force.
- The Relief sought by you is granted but remanded back to the family court: If the appellate court grants relief for some of the issues being appealed, but finds that other issues need to be heard or decided by the family court, the appellate court may remand the matter to the family court with instructions to address the remaining issues.
Whenever a court issues a decision on your appellate matter, there is no presumption of what relief you should be granted by the family court. Consequently, the court must issue a written opinion on the reasoning behind the result in your case. The opinion may be of any length, based on the complexity of the issues that were raised on appeal.
Selecting a Skilled Lawyer
The lawyer you want to hire for an appeal, if possible, is one who does a lot of appeals. In my opinion, this is preferable to someone who "doesn’t do any appeals, but I’m sure it would all be okay." Why? Because appeals aren’t all that common, and there’s really a skill to it that only someone who regularly works on them can accomplish. That’s not so say that its impossible or even that it can’t be done, just that it will be significantly easier if you already know how to do it. And an appeal is nothing to take lightly. You need an advocate to help you especially if you are going to be dealing with something like the Court of Appeals.
What does an attorney who primarily handles appeals bring to the table? First, it should be an attorney who knows what the appellate rules are. The appellate rules are pretty wonky. If you don’t do anything in the right order you’ll be out of luck. You’ll prevent every other chance you have at reversal based on whatever you did or didn’t do in the lower Court. Second , the attorney needs to know what the appellate court is looking for. That goes both ways. Are they looking for a reason to reverse or a reason to keep the lower court’s decision? You need to know that before you get started. Third, an attorney who knows how to properly brief an appeal so that the judge understands what the issue is and how to decide it. Finally, an attorney who helps you through what to expect with a case. An attorney can help you through what your expectations need to be and what just might happen. This can be helpful to you as you discuss strategy and work through the process.
How do you find an attorney that specializes in appeals? That’s easy – you search for attorneys in your state that specialize in appellate litigation. That’s it. Then you ask them what their appellate experience has been and you go from there.
Possible Results of an Appeal
When seeking to overturn a judge’s decision, litigants often wonder what will happen should the appellate court agree with them. The first possible outcome is that the appellate court could reverse the judge’s decision entirely. This essentially means an issue was heard in the lower court that was adverse to the appellant, and the appeals court believes the lower court got it wrong. For example, in a child custody case, a mother may have a scheduling arrangement where she has more time with the children than is deemed appropriate. She appeals this to the local family court, but the judge finds that the current order is in the best interest of the children. The child custody appeals court, however, disagrees and reverses the lower court’s decision with an actual judicial order. This is effectively the same as if the appellate court issued the original ruling. Reverse and remand is another possibility. In our child custody example, the appeals court may find that the family court judge made an error in his or her ruling or that a decision was not made because that part of the decision had not been appealed. The appeals court would vacate that part of the order and send it back to the lower court for correction. Affirming a decision upholds the ruling of the family court judge. It denotes that the local court did not make an error in judgment or approach, that sufficient evidence was provided, and the decision is supported by the law as intended. Other outcomes are less positive. Two of them indicate there was no error from the lower court, such as evidence that the appeals court is required to review all facts. An example is an abusive father who is granted visitation time in the presence of a social worker. A family court judge may have found that the father violated terms that prevented him from being unsupervised and was awarded the right to see the child under supervision only. Under the appeals court’s review of the facts, however, they find that the father was not violating the order and meet the court’s requirements. Or, the trial judge may have abused his or her discretion without an error from the court. In other scenarios, the appellate court can issue a writ of mandamus or writ of prohibition. Both mandates the court to review an order, but conditions of the review differ. A writ of mandamus commands a lower (family) court to do something, while a writ of prohibition prevents a lower court from taking or continuing some action.
Appeal Costs and Considerations
The cost of appealing a family court judge’s decision can vary, but it is an expense that should not be taken lightly. There are four primary areas of consideration when evaluating the costs of your appeal in a family court action:
Filing Fees
You would have filing fees even if you were just appealing a lower court’s decision in state. However, if your family court appeal requires an appellate document published by the Supreme Court, there is an additional filing fee.
Court Fees
Your appeal will need to be served on each person involved in your case. Court fees will build up for each person who must receive a copy of the determination. Additionally, you might end up needing to pay for a transcription of the hearing that you’re appealing – so you’ll need to budget for these expenses as well. Finally, the name on the hearing transcript may have to be corrected before filing, which can come with more fees attached.
Attorney Fees
Sometimes having your attorney handle your appeal is a little pricier than the initial court case, but other times your legal expenses will be contained. One common factor causing the increase in price is that most appeals take longer than a "typical" court case.
Opposition Attorney Fees
This is arguably the most frustrating cost attached to appealing a family court’s decision. If your appeal completely fails, the judge may decide that you must pay the opposing party’s attorney’s fees.
Errors People Often Make
The first mistake to avoid is missing the deadline to file a Notice of Appeal. Once the appeal period has expired (40 days from the Judge’s decision), litigants will be prohibited from appealing the decision to the Court of Appeals. If an unsuccessful party did not wait for the Judge’s decision in that case before filing a Notice of Appeal, the party will be able to argue that the Notice of Appeal was filed prematurely and, therefore, void.
The second mistake to avoid is failing to file the correct documents. The documents that must be filed and served with the Notice of Appeal include the Notice of Appeal, requesting a transcript, a designation of the record on appeal, and a Case Information Cover Sheet. The appellant also has the option of filing an Application for Writ of Certiorari in lieu of a Petition for a Writ of Certiorari if the order or judgment is final and appealable . If the appellant fails to file the required documents, then he or she may not be able to record errors before the appellate court.
The third mistake is to fail to get a transcript. If a transcript is required to understand any allegations of error, then the appellant must ask for and pay for that transcript. The Appellate Rules govern what transcripts must be provided and when they must be provided. If the appellant does not provide a transcript and it is determined to be necessary for the review of the issues on appeal, then the appellant is precluded from arguing those issues himself or herself on appeal.
Fourth, it is a mistake not to read the Appellate Rules. Most appellate mistakes can be fixed by reading the applicable statutes and rules of Appellate Procedure.