"What is an appeal?"
If you do not agree with a decision rendered by a Family Part judge, you
can dispute the decision by filing an appeal to a higher court.
"What is the standard of review?"
The standard of review that the Appellate Division applies when deciding
whether a Family Part Judge's decision should be reversed varies depending
upon the particular issue being appealed. Generally, in order to reverse the Family
Part Judge's decision, you must demonstrate that the decision failed to
follow controlling legal principles, was an abuse of discretion, or was
not based upon substantial credible evidence.
"To which court do I appeal?"
In New Jersey, all family law appeals are first submitted to the Appellate
Division, where the issue will be reviewed by a panel consisting of either
2 or 3 Appellate Division Judges. If you wish to appeal an unanimous
Appellate Division decision, you need to file a formal request with New
Jersey's highest court, the New Jersey Supreme Court. The New Jersey
Supreme Court has the option of deciding whether it wishes to consider the
matter (called "granting certification") or not (called "denying
certification"). In situations where one Appellate Division Judge
disagrees with the two other Judges hearing the appeal, the matter will
automatically be heard by the New Jersey Supreme Court at either party's
request.
"Do I need permission to appeal a Family
Part Judge's decision?"
It depends on what type of decision you are appealing. If the decision is
a final decision (a decision is considered to be final when it
disposes of everything before the court), then no permission is needed. If the decision is a temporary or
interim decision (referred to as "interlocutory"), then you
need
the Appellate Division's permission to appeal. In order to obtain
the Appellate Division's permission to have an interlocutory order
considered, you must file a motion for leave to appeal.
"How long do I have to file an appeal?"
You only have 45 days from the time in which you receive the Court's final
order to file an appeal. This rule is strictly enforced, and
untimely appeals will not be considered.
"What evidence will the Appellate Division
consider when hearing an appeal?"
The Appellate Division normally only considers the record below. The
record on appeal consists of the transcripts, pleadings and evidence
submitted to the Family Part Judge. If you wish to have evidence not
presented below considered by the Appellate Division, then it is necessary
to file a motion to supplement the record.
"How long does the appeal process take?"
A normal appeal generally takes about 16 months from start to finish.
"What if I cannot wait that long?"
The Appellate Division has the discretion to hear an appeal on an emergent
basis, or to accelerate the appeal so that it is heard more quickly.
In order to have a matter handled on an emergent basis, you must
file an application with the Appellate Division and demonstrate that a
definitive event will occur or specific action is required on a date prior
to the date on which a motion made in the ordinary course can be
considered by the court (usually three to four weeks after the filing of
the motion). An emergent appeal can be decided in as little as 24 to
48 hours. If you wish to request that an appeal be heard on an
expedited basis, you must file a "motion to accelerate" the appeal with
the Appellate Division.
"Do I need an attorney to file an appeal?"
The rules for filing an appeal are very strict. For instance,
failure to submit a brief in the correct font, or with improper margins will cause the clerk's
office to reject the submission. In addition, there are strict rules
pertaining to how the brief (legal argument) and appendix (record from
below) are to be prepared. If you are serious about winning an
appeal, it is imperative that you utilize the services of an attorney with
substantial experience handling such matters before the New Jersey
Appellate Courts.
"How much does an appeal cost?"
Attorneys handle appeals
on an hourly basis. The number of attorney hours required will vary greatly depending upon the complexity of the
issues involved, and the length of the proceedings below. An attorney handling an appeal
will be required to review the entire record stemming from the Family
Court proceeding. Therefore, a larger
record (i.e. many days of trial) will normally result in an appeal being more expensive
than an appeal stemming from a post-judgment motion. In addition,
the more complicated the issues, the more time it will take to properly
research and draft the required brief that sets forth your legal argument
in writing.
We at Szaferman, Lakind believe that our firm's impressive record in the New
Jersey appellate courts can be directly attributed to the fact that we are
very selective when agreeing to handle an appeal. Our high level of sophistication and
experience in handling family law appeals makes us uniquely qualified to
properly evaluate your chances of succeeding when prosecuting or defending
an appeal. We encourage you to contact
Brian G. Paul, Esq. if you wish to have Szaferman, Lakind consider
handling a family law appeal on your behalf. In addition to evaluating your
likelihood of success on the appeal, we will also provide you with an
estimate of the total cost of the appeal, should our firm agree to handle
it for you.
"What happens to the original decision
while it is being appealed?"
The Family Part's Order remains in full force and effect after an appeal
has been filed unless the Appellate Division or the Trial Court issue a
"stay pending appeal." A stay can be obtained through the filing of
a motion. Prior to filing a motion for a stay pending appeal with
the Appellate Division, you must first request the Family Part Judge to issue a stay. Generally, in order to be successful on a stay motion, you must
demonstrate: (1) irreparable harm will result
from enforcement of the judgment pending appeal; (2) the appeal presents a
meritorious issue, and that you have a likelihood of success on the merits;
and (3) assessment of the relative hardship to the parties reveals that
greater harm would occur if a stay is not granted than if it were granted.
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