Commencing an Appeal: Notice of Appeal
The
Legal Aid society, Juvenile Rights Practice
I.
Orders Appealed From
Ø
In Article 10
proceedings, all orders are appealable as of right
(Fam. Ct. Act § 1112). Thus, no need to ask for leave to appeal from
interim orders)
Ø
In all other
proceedings (i.e. delinquency, custody or TPRs) only
order of disposition appealable as of right.
²
Need to request
leave to appeal from interim orders ( at the discretion of the AD)
II.
Time for Filing:
Ø
Fam. Ct. Act §1113 -- appeal must be taken no later than:
²
30 days after the
service by a party or the law guardian upon the appellant of any order from
which the appeal is taken (if service by mail, then 35 days from date of
service); or
²
30 from receipt
of the order by the appellant in court;
²
35 days from the
mailing of the order to the appellant by the clerk of the court, whichever is
earliest
Ø
If your client has not received the order as specified
in § 1113,
the thirty-day time limit will not begin to run. Therefore, if more than thirty days have
passed and you did not file a notice of appeal, but your client has never
received the order, you can serve notice of entry and then file the
notice.
Ø
If the Family
Court issued order in your favor, it is important to serve notice of entry on
the other parties and the law guardian in order for that 30-day limit to start
running.
III.
Notice of Appeal: Form
Ø
Must designate
(C.P.L.R. § 5516):
²
The party taking
the appeal
²
The judgment or
order (or specific part thereof) appealed from
²
Court to which
appeal is taken
Ø
Check Court rules:
²
In AD2, need to
attach order, any decision, and need to complete and file a RADI (Request for
Appellate Division Intervention) (Can download from AD website)
Ø
No need to file
pre-argument statement!
IV.
Filing and Service of
Notice of Appeal
Ø
Fam Ct. Act . § 1115 (also check court rules)
Ø
Original + two
copies of notice of appeal and proof of service on other parties is filed with the Clerk of the Family Court in the county
from which the appeal is being taken.
(The clerk sends a copy to the AD2)
Ø
Service of the
notice of appeal must be upon any adverse party.
V.
Defective
notices of appeal .
Ø
CPLR §5520
Ø
If an appeal is
timely served or filed but the appellant neglects to do some other necessary
act (serve another party, etc.), the court to or from which the appeal is taken
may grant an extension of time to cure the omission.
Ø
If the notice is
premature or defective in form (inaccurate description of order, etc.), the
appellate court “when the interests of justice so demand, may treat such a
notice as valid.”
VI.
Duties of Counsel
Ø
Fam. Ct. Act §
1121
Ø
Counsel must
advise client in writing of:
²
Right to appeal
²
Time limitations
involved in appeal and manner of instituting an appeal and obtaining a
transcript of testimony,
²
Right to apply
for poor person’s relief,
²
Procedures for
instituting an appeal, possible issues to be raised on appeal, and nature and
possible consequences of appellate process.
Ø
Counsel must file
notice of appeal if client desires.
Ø
In applying for
poor person relief and/or assignment of counsel on appeal, counsel should file
a certification of continued indigency and continued
eligibility for appointment of counsel.
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Last updated January 12, 2010
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