- April 2, 2023
- Yoni Levoritz
- Child Custody
How to Appeal Child Custody Issues
A guide by the Levoritz Law Firm
You may wonder if you can appeal a Family law order for your children’s custody or visitation schedule. There are ways to appeal these matters, but you can only plead in particular circumstances. There is also a possibility that parental custodial or visitation rights can be modified. Learn more about appealing and solving custodial disputes and visitation rights.
Steps to Appeal a Child Custody Issue
1. Ensure that you have a final order of the court judgment. It is insufficient to appeal a Judge’s oral instructions or a family law settlement.
2. File the “Notice of Appeal” with the New York Appellate Law Court within thirty to thirty-five days after the Family Law Court entered the order.
3. “Perfect” the appeal by supplying the necessary information for the appeal.
4. If both parties disagree with the lower court decision, then both parties may appeal the family law order, called a “cross-appeal.”
5. You must wait six to twelve months for the Appeal court to decide on your appeal.
6. If you receive an “affirmed” notice by the Appellate court, the previous ruling is held, meaning you have lost your appeal.
7. If the Appellate court “overturns” the previous decision, the court will provide a new outcome for your children’s visitation or custody schedule or a new hearing on the issue;
It’s best to utilize the services of an experienced and knowledgeable family law appellate attorney like the ones at the Levoritz Law Firm to ensure you put your best appeal forward and you meet all of the associated deadlines. Call them today for assistance with your family law appeal at 855.213.3104.
Downsides of Appealing a Child Custody issue in New York
Appealing a Child Custody case does not give the interested parties, like the ex-spouses or a concerned family member, another chance at re-trying the issues within the court. This means there will be no witnesses to speak on the ex-spouse’s behalf, and the court will not hear more testimony. Appealing a Child custody case will not give you additional time in court to decide on the issues.
It is improbable that the court will rule in your favor for a family law appeal unless there is a clear violation of the law that is applied or if there was an erroneous finding in your previous family law trial court decision. This means that even if one ex-spouse is unhappy with the custody or visitation schedule unless the court erred in the reasoning or there not a reason to believe it is not in the best interest of the child, the court is unlikely to change the custodial and visitation schedule for the children.
How do the New York courts Decide on child custody issues?
First and foremost, it is essential to realize that the New York State Family Law Court judges will decide on custodial issues with the child’s best interest in mind. This means that regardless of each ex-spouse’s feelings about the matter, the child’s best interest will be the most critical factor in deciding custody rulings. This means that if the trial court has already agreed on visitation issues for a family’s children, the family law court will deny hearing the appeal if they decide that the previous decision was made with the best interest of the child(ren) in mind.
However, it is possible that circumstances can change that impact your children’s custodial parent or visitation rights. If the court previously decided correctly and circumstances have changed, you may be able to utilize a custodial parent modification.
Can you appeal Child Visitation issues?
Yes, an ex-spouse can appeal a visitation issue if they believe it was made in error of the law or if the court abused its discretion in deciding on the visitation issue. Particularly, if one parent believes that the visitation orders for their children were not made in the child’s best interest, then this ex-spouse can appeal their visitation rights.
If you wish to change a custody or visitation order in court, your best avenue for success may be a modification order instead of a family law appeal. Either parent or ex-spouse can petition the New York Court System to modify an existing family law ruling if circumstances have changed or after a certain amount of time has passed. Child custody modifications are typically more accessible and less costly than appeals and can be good options for minor changes to overnight visits or accommodating scheduling conflicts.
However, discussing the matter with a knowledgeable and experienced family law attorney is always best if you have a particular concern.
How does the Court decide on the best interest of the child?
Both the Family law trial courts and Family law Appellate courts utilize the “best interest of the child” as the standard in applying legal decisions for the child’s custody or visitation rights.
Factors that the courts utilize in deciding the best interest of the child include:
● Stability of each parent
● The ability of child care to be provided by each parent (daycare, babysitters, other family members, etc.)
● Primary caretaker before the divorce
● Safety of each parent (propensity for drugs, violence, alcohol consumption, etc.)
● Mental and Physical health of each parent
● If the child is old enough, the child’s desire to live with a particular parent or another family member
● Home environment (proximity to school and activities)
● The ability to foster a relationship with the non-custodial parent, which is a very important factor as viewed by the courts.
What is the likely outcome for an appeal based on Child Custody and visitation rights?
Unless the New York state courts can find examples of abuse of their discretion, an error of law, or if the previously agreed upon visitation and custodial rights are not in the best interest of the child, it is unlikely that the New York Family law court will change the visitation or custody schedule under the Appellate division of the New York State Court. It is doubtful that your court will proceed to the Supreme Court of New York for a family law matter. It is much more likely that your outcome for an appeal based on Child custody and visitation rights will be affirmed, and the previous holding will remain.
The Levoritz Law Firm has years of combined experience working on family law appeals and child custody issues. Call them today for assistance with your family law appeal at 855.213.3104.