New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
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. Top of Page
Index | Article 1 |
Article 2 | Article 3 |
Article 4 | Article 5 |
Article 5A | Article 5B |
Article 6 | Article 7 |
Article 8 | Article 9 |
Article 10 | Article 10A |
Article 10B | Article 10C |
Article 11 | Article 12
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