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Article 11 - Family Court

APPEALS

Section Description
1111 Appeals to appellate division.
1112 Appealable orders.
1113 Time of appeal.
1114 Effect of appeal; stay.
1115 Notices of appeal.
1116 Printed case and brief not required.
1117 Costs.
1118 Applicability of civil practice law and rules.
1119 Effective date.
1120 Counsel for parties and children on appeal.
1121 Special procedures.
  S 1111. Appeals to appellate division. An appeal may be taken to the
  appellate division of the supreme court of the  judicial  department  in
  which the family court whose order is appealed from is located.

  S 1112. Appealable orders. a. 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. An appeal from
  an intermediate or final order in a case involving abuse or neglect  may
  be  taken  as  of  right to the appellate division of the supreme court.
  Pending the determination of such appeal, such  order  shall  be  stayed
  where  the  effect of such order would be to discharge the child, if the
  family court or the court before which such appeal is pending finds that
  such a stay is necessary to avoid imminent risk to the child's  life  or
  health.  A preference in accordance with rule five thousand five hundred
  twenty-one of the civil  practice  law  and  rules  shall  be  afforded,
  without  the  necessity  of  a  motion, for appeals under article three;
  parts one and two of article six; articles seven, ten, and ten-A of this
  act;  and  sections   three   hundred   fifty-eight-a,   three   hundred
  eighty-three-c,   three   hundred   eighty-four,   and   three   hundred
  eighty-four-b of the social services law.
    b. In any proceeding pursuant to article ten of this  act  or  in  any
  proceeding  pursuant  to  article ten-A of this act that originated as a
  proceeding under article ten of this act where the family  court  issues
  an  order which will result in the return of a child previously remanded
  or placed by the family court in the custody of someone other  than  the
  respondent,  such  order  shall  be  stayed  until five p.m. of the next
  business day after the day on which such order  is  issued  unless  such
  stay  is  waived by all parties to the proceeding by written stipulation
  or upon the record in family court. Nothing herein shall  be  deemed  to
  affect  the  discretion  of a judge of the family court to stay an order
  returning a child to the custody of a respondent for a longer period  of
  time than set forth in this subdivision.

  S 1113. Time of appeal. An appeal under this article must be taken no
  later than thirty days after the service  by  a  party  or  the  child's
  attorney upon the appellant of any order from which the appeal is taken,
  thirty  days  from  receipt  of  the  order by the appellant in court or
  thirty-five days from the mailing of the order to the appellant  by  the
  clerk of the court, whichever is earliest.
    All  such  orders shall contain the following statement in conspicuous
  print: "Pursuant to section 1113 of the family court act, an appeal must
  be taken within thirty days of receipt of  the  order  by  appellant  in
  court,  thirty-five  days from the mailing of the order to the appellant
  by the clerk of the court, or thirty days after service by  a  party  or
  attorney  for the child upon the appellant, whichever is earliest." When
  service of the order is made by the court, the time to  take  an  appeal
  shall not commence unless the order contains such statement and there is
  an  official  notation in the court record as to the date and the manner
  of service of the order.

  S 1114. Effect of appeal; stay. (a) The timely filing of a notice of
  appeal under this article does not stay the order from which the  appeal
  is taken.
    (b)  Except  as provided in subdivision (d) of this section, a justice
  of the appellate division to which an appeal is taken may stay execution
  of the order from which the appeal is taken on such conditions, if  any,
  as may be appropriate.
    (c)  If  the order appealed from is an order of support under articles
  four or five, the stay may be conditioned upon the giving of  sufficient
  surety  by a written undertaking approved by such judge of the appellate
  division, that during the pendency of the appeal, the appellant will pay
  the amount specified in the order to the family court from  whose  order
  the  appeal is taken. The stay may further provide that the family court
  (i) shall hold such payments in escrow,  pending  determination  of  the
  appeal  or (ii) shall disburse such payments or any part of them for the
  support of the petitioner or other person for whose  benefit  the  order
  was made.
    (d)  Any  party  to a child protective proceeding, or the attorney for
  the child, may apply to a justice of the appellate division for  a  stay
  of  an  order issued pursuant to part two of article ten of this chapter
  returning a child to the custody of a respondent. The party applying for
  the stay shall notify the attorneys for all parties and the attorney for
  the child of the time and place of such application. If requested by any
  party present, oral argument shall be had on the application, except for
  good cause stated upon the record. The party applying for the stay shall
  state in the application the errors of fact or law  allegedly  committed
  by  the  family court. A party applying to the court for the granting or
  continuation of such stay shall make every reasonable effort to obtain a
  complete transcript of the proceeding before the family court.
    If a stay is granted, a schedule shall be set for an expedited appeal.

  S 1115. Notices  of  appeal. An appeal as of right shall be taken by
  filing the original notice of appeal with the clerk of the family  court
  in which the order was made and from which the appeal is taken.
    A  notice  of  appeal shall be served on any adverse party as provided
  for in subdivision one of section five thousand five hundred fifteen  of
  the  civil practice law and rules and upon the child's attorney, if any.
  The appellant shall file two copies of such notice, together with  proof
  of  service,  with  the  clerk  of  the family court who shall forthwith
  transmit one copy of  such  notice  to  the  clerk  of  the  appropriate
  appellate division or as otherwise required by such appellate division.

  S 1116. Printed  case  and brief not required. In appeals under this
  article, a printed case on appeal  or  a  printed  brief  shall  not  be
  required.

  S 1117. Costs.  When  costs  and  disbursements  on  an  appeal in a
  proceeding instituted by a social services official are awarded  to  the
  respondent, they shall be a county charge and be paid by the county.

  S 1118. Applicability of civil practice law and rules. The provisions
  of the civil practice law and rules apply where appropriate  to  appeals
  under this article, provided, however, that the fees required by section
  eight  thousand twenty-two of the civil practice law and rules shall not
  be required where the attorney for the appellant  or  attorney  for  the
  movant,  as applicable, certifies that such appellant or movant has been
  assigned counsel or an attorney for a  child  pursuant  to  section  two
  hundred  forty-nine,  two  hundred sixty-two or eleven hundred twenty of
  this act or section seven hundred twenty-two of the county  law,  or  is
  represented  by a legal aid society or a legal services program or other
  nonprofit organization, which has as its primary purpose the  furnishing
  of  legal services to indigent persons, or by private counsel working on
  behalf of or under the auspices of such society or  organization.  Where
  the  attorney for the appellant or the attorney for the movant certifies
  in accordance with procedures established by the  appropriate  appellate
  division  that  the  appellant  or movant has been represented in family
  court by assigned counsel or  an  attorney  for  a  child,  pursuant  to
  section  two hundred forty-nine, two hundred sixty-two or eleven hundred
  twenty of this act or section seven hundred  twenty-two  of  the  county
  law,  or is represented by a legal aid society or legal services program
  or some other nonprofit organization, which has as its  primary  purpose
  the  furnishing  of  legal  services  to indigent persons, or by private
  counsel working on behalf or under  the  auspices  of  such  society  or
  organization,  and that the appellant, who has indicated an intention to
  appeal, or movant, continues to be eligible for  assignment  of  counsel
  and,  in  the  case  of  counsel  assigned  to represent an adult party,
  continues to be indigent, the appellant  or  movant  shall  be  presumed
  eligible  for  poor person relief pursuant to section eleven hundred one
  of the civil practice law and rules and for  assignment  of  counsel  on
  appeal  without  further motion. The appointment of counsel and granting
  of poor person relief by the appellate division shall continue  for  the
  purpose  of  filing  a notice of appeal or motion for leave to appeal to
  the court of appeals.

  S 1119. Effective  date. This act shall take effect September first,
  nineteen hundred sixty-two.

  S 1120. Counsel  for  parties and children on appeal.  (a) Upon an
  appeal in a proceeding under this act, the appellate division  to  which
  such  appeal is taken, or is sought to be taken, shall assign counsel to
  any person upon a showing  that  such  person  is  one  of  the  persons
  described   in  section  two  hundred  sixty-two  of  this  act  and  is
  financially unable to obtain independent counsel or  upon  certification
  by  an  attorney  in  accordance with section eleven hundred eighteen of
  this article. The appellate division to which such appeal is  taken,  or
  is sought to be taken, may in its discretion assign counsel to any party
  to the appeal.  Counsel assigned under this section shall be compensated
  and  shall receive reimbursement for expenses reasonably incurred in the
  same manner provided by section seven hundred twenty-two-b of the county
  law.   The appointment  of  counsel  by  the  appellate  division  shall
  continue  for  the  purpose  of  filing a notice of appeal or motion for
  leave to appeal to the court of appeals. Counsel may be relieved of  his
  or  her representation upon application to the court to which the appeal
  is taken for termination of the appointment, by the  court  on  its  own
  motion  or,  in the case of a motion for leave to appeal to the court of
  appeals, upon application to the appellate division. Upon termination of
  the appointment of  counsel  for  an  indigent  party  the  court  shall
  promptly appoint another attorney.
    (b)  Whenever  an  attorney  has  been  appointed  by the family court
  pursuant to section two hundred forty-nine of this act  to  represent  a
  child  in a proceeding described therein, the appointment shall continue
  without further court order or appointment where  (i)  the  attorney  on
  behalf  of  the child files a notice of appeal, or (ii) where a party to
  the original proceeding files a notice of appeal. The attorney  for  the
  child  may  be  relieved  of  his representation upon application to the
  court to which the appeal is taken for termination of  the  appointment.
  Upon  approval  of  such  application  the  court  shall appoint another
  attorney for the child.
    (c) An appellate court may appoint an attorney to represent a child in
  an appeal in a proceeding originating  in  the  family  court  where  an
  attorney  was not representing the child at the time of the entry of the
  order appealed from or at the time of  the  filing  of  the  motion  for
  permission  to  appeal  and when independent legal representation is not
  available to such child.
    (d) Nothing in this section shall be deemed to relieve  attorneys  for
  children  of  their duties pursuant to subdivision one of sections 354.2
  and seven hundred sixty of this act.
    (e) An attorney appointed or continuing to  represent  a  child  under
  this  section  shall  be compensated and shall receive reimbursement for
  expenses reasonably incurred in the  same  manner  provided  by  section
  thirty-five of the judiciary law.
    (f)  In any case where an attorney is or shall be representing a child
  in an appellate proceeding pursuant to subdivision (b) or  (c)  of  this
  section,  such  attorney  shall  be  served with a copy of the notice of
  appeal.

  S 1121. Special  procedures.  1.  Consistent  with the provisions of
  sections 354.2, seven hundred sixty and one thousand fifty-two-b of this
  act the provisions of this section shall apply  to  appeals  taken  from
  orders issued pursuant to articles three, seven, ten and ten-A and parts
  one  and  two of article six of this act, and pursuant to sections three
  hundred  fifty-eight-a,  three  hundred  eighty-three-c,  three  hundred
  eighty-four, and three hundred eighty-four-b of the social services law.
    2.  Upon  the filing of such order, it shall be the duty of counsel to
  the parties and the child to promptly advise the parties in  writing  of
  the right to appeal to the appropriate appellate division of the supreme
  court,  the  time  limitations  involved,  the  manner of instituting an
  appeal and obtaining a transcript of the  testimony  and  the  right  to
  apply for leave to appeal as a poor person if the party is unable to pay
  the  cost  of an appeal. It shall be the further duty of such counsel to
  explain to the client the procedures  for  instituting  an  appeal,  the
  possible  reasons  upon  which an appeal may be based and the nature and
  possible consequences of the appellate process.
    3. It shall also be the duty of such counsel to ascertain whether  the
  party represented by such attorney wishes to appeal and, if so, to serve
  and file the necessary notice of appeal and, as applicable, to apply for
  leave  to  appeal as a poor person, to file a certification of continued
  eligibility for  appointment  of  counsel  pursuant  to  section  eleven
  hundred  eighteen of this article, and to submit such other documents as
  may be required by the appropriate appellate division.
    4. If the party has been permitted to waive the appointment of counsel
  appointed pursuant to section two hundred forty-nine-a  or  two  hundred
  sixty-two  of  this act, it shall be the duty of the court to advise the
  party of the right to the appointment of  counsel  for  the  purpose  of
  filing an appeal.
    5.  Where  a party wishes to appeal, it shall also be the duty of such
  counsel, where appropriate, to apply for assignment of counsel for  such
  party  pursuant  to applicable provisions of this act, the judiciary law
  and the civil practice law and rules, and to  file  a  certification  of
  continued  eligibility  for  appointment  of counsel and, in the case of
  counsel assigned to  represent  an  adult  party,  continued  indigency,
  pursuant  to  section  one thousand one hundred eighteen of this article
  and to submit such other documents as may be required by the appropriate
  appellate division.
    6. (a) Except as provided for herein, counsel for the appellant shall,
  no later than ten days  after  filing  the  notice  of  appeal,  request
  preparation of the transcript of the proceeding appealed therefrom.
    (b)  Counsel  assigned  or appointed pursuant to article eleven of the
  civil practice law and rules or section eleven hundred  twenty  of  this
  act  shall,  no  later  than  ten  days  after receipt of notice of such
  appointment, request preparation of the  transcript  of  the  proceeding
  appealed from.
    (c)  In  any  case  where counsel is assigned or appointed pursuant to
  paragraph (b) of this subdivision subsequent to the filing of the notice
  of appeal, such counsel shall, within ten days  of  such  assignment  or
  appointment,  request  preparation  of  the transcript of the proceeding
  appealed from.
    (d) Where the appellant is seeking relief to proceed as a poor  person
  pursuant  to  article  eleven  of  the civil practice law and rules, the
  transcript of the proceeding appealed from shall be requested within ten
  days of the order determining the motion.
    7. Such transcript shall be completed  within  thirty  days  from  the
  receipt  of  the  request of the appellant. Where such transcript is not
  completed within such time period, the court reporter or director of the
  transcription service responsible for the preparation of the  transcript
  shall  notify  the  administrative  judge  of  the  appropriate judicial
  district.  Such  administrative  judge  shall  establish  procedures  to
  effectuate  the  timely  preparation  of  such transcript. The appellate
  divisions may establish additional procedures to effectuate  the  timely
  preparation of transcripts.
    The  appellate  division  shall  establish  procedures  to  ensure the
  expeditious filing and service of the appellant's brief,  the  answering
  brief  and  any  reply  brief,  which may include scheduling orders. The
  appellant shall perfect the appeal within sixty days of receipt  of  the
  transcript  of the proceeding appealed from or within any different time
  that the appellate division has by rule prescribed for  perfecting  such
  appeals  under subdivision (c) of rule five thousand five hundred thirty
  of the civil practice law and rules or as  otherwise  specified  by  the
  appellate  division.  Such  sixty  day or other prescribed period may be
  extended by the appellate division for good  cause  shown  upon  written
  application  to the appellate division showing merit to the appeal and a
  reasonable ground for an extension of time. Upon the granting of such an
  extension of time  the  appellate  division  shall  issue  new  specific
  deadlines  by  which  the appellant's brief, the answering brief and any
  reply brief must be filed and served.

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