I have had two reports written, one by social services and one by cafcass in relation to my childrens father gaining contact with them. Both reports recommended no contact. I have been fighting through the courts for the last 3 years and everytime the court dismisses his application based on the reports. The most recent one being written last year when my ex decided to make another application for contact.
I was totally shocked this time around to find the judge ordering contact. This is not going to happen. It is my children s right to be safe and as they mum i would be failing to protect them if i allowed this to happen. We have moved many times over the last 4 years (11 to be exact) all of these moves have been initiated by social services and the police due to my ex finding where we are and persistently calling the police telling them he is on his way to kill me and the children!
Please do not recommend me contacting my solicitor, i am planning to dismiss her as soon as possible as i feel she totally went against my directions this time round and was also intimidated by my ex’s solicitor to the point she crumbled and didn’t know what to say.
I have a good understanding of the procedures etc i just cannot find any information on appealing a family court order I feel the only person who can represent my children s best interests is me. I obviously know this case inside out and i am more than capable of focusing on the child contact only. My children always come first and i will do everything to fight for them to continue to have a safe loving environment.
There may be times during the pendency of your case in which the Judge issues an order with which you disagree and which you may think an appellate court should review immediately. You should be aware, however, that most orders issued while a case is still ongoing cannot be appealed immediately. You will have to wait until a final judgment has been entered in your case before the order(s) can be considered by an appellate court. The Federal Rules of Appellate Procedure explain when an order is appealable. You must familiarize yourself with these rules before filing a notice of appeal. Filing a notice of appeal prematurely will delay final resolution of your case and may add unnecessary expense to your case.
If you file a notice of appeal, you will be required to pay a filing fee with the District Court unless you are permitted to proceed in forma pauperis. If you wish to proceed in forma pauperis for purposes of the appeal, then at the time of filing your notice of appeal, you must also file an application to proceed in forma pauperis on appeal.
Once the appellate court is determined to have jurisdiction over the appeal, it will direct the District Court Clerk’s Office to transmit the record from the District Court. If you are permitted to proceed in forma pauperis on appeal, you may still be required to pay for certain costs, such as the cost for transcribing any hearings or other proceedings that may have taken place before the Judge.
An appeal is when you ask a higher court to review or look at, an order, or decision, made by the court you went to first. You ask for a review if you think the first court made a mistake. Mistakes can be made about:
- How facts were used in a case. For example, the court did not understand the facts or considered some facts to be really important when they were not.
- The law. For example, the court did not understand the law or used the law in the wrong way.
- Reverse means the Appellate Division decides that the decision of the Family Court was wrong. When this happens, the Appellate Division vacates the decision of the Family Court. Vacates means to cancel.
- Remand is when the Appellate Division tells the Family Court to hear the case again.
- Affirm is when the Appellate Division says the Family Court made the right decision. This means the decision stays the same. Many times a decision is affirmed because the Appellate Division accepted the opinion of the Family Court judge that one witness was more credible, or believable, than another witness. The Appellate Division cannot make a decision about how credible a person was because they did not see that person testify. Testify means speak at the trial.
- Modify is when the Appellate Division changes part of the Family Court decision.
2. You must bring two copies of the Notice of Appeal with proof of service to the Clerk of the Family Court that made the order. (Proof of service means you let the respondent know you are appealing. For more information on proof of service, see the LIFT guide “Serving Court Papers.”) The Clerk will give one of the copies to the Clerk of the Appellate Division. You should also give copies of the Notice of Appeal to any lawyers or law guardians who were involved in your Family Court case.
- After you file your appeal, you must get a full record of your case, including the transcripts. You will have to pay for transcripts unless you got poor person relief. This was explained in the answer to the question about getting a free lawyer.
- You must then perfect the appeal. For some people, this means prepare a full record of your case including a brief. A brief is a written legal argument that explains the reasons for your appeal. You file the brief with the Appellate Division. You must also serve the brief on the respondent. The full record of your case may also include a transcript, the order you are appealing, exhibits (evidence) that were used during the hearing and are related to the decision being appealed, and any other orders or opinions written by the judge about your case. Others are able to appeal on the record and can ask the Family Court to send the file to the Appellate Division.
Only if the temporary order comes in an abuse or neglect case. For any other temporary order, you must first file a motion with the Appellate Division asking for permission to appeal.
In abuse or neglect cases, you have the right to appeal a temporary order or a final order without asking permission from the Appellate Division. For example, if a judge decides that you have abused or neglected your child and issues an order that temporarily places your child in foster care, you are allowed to appeal that decision. Abuse and neglect cases are given a preference. This means that your case should be heard as soon as possible.
NOTE: Before you appeal a Family Court decision, you MUST contact the clerk of the Appellate Division in your department and ask about their specific rules.
Andrea Rice is an award-winning journalist and a freelance writer, editor, and fact-checker specializing in health and wellness.
Robert Daly / Getty Images
Family courts do their best to rule in the best interest of the child but occasionally mistakes are made. As a parent, you do have the right to appeal a custody order if you disagree with the custody arrangement determined by the court. However, there are rules—which vary state to state—regarding when and under what circumstances a child custody agreement can be appealed.
Becoming well informed about the laws in your state is one of the best things you can do to help your next child custody hearing. Here we have answers to some of the most common questions about appealing custody orders.
Know Your State’s Laws
You should refer to your state’s child’s child custody laws for more information about the specific rules within your jurisdiction.
In general, a custody order is eligible for appeal if it is a final and complete order.
What Is a Final and Complete Order?
A final order is one in which the court has reached a conclusion. Usually, this means there has been a child custody hearing on the merits, the parties have gone to court, and there are no scheduled court dates remaining.
In addition, the custody order issued by the court must be complete. In other words, it must resolve all of the custody issues pending between the two parties.
Types That Can’t Be Appealed
Some courts may issue temporary or non-final orders (also called interlocutory orders) on a number of child-related issues, and these orders typically cannot be appealed. In this case, the parent who wishes to make an appeal must wait until the court has issued its final ruling on child custody.
How Parents Can Appeal an Order
If the order is, indeed, final and complete and you wish to appeal it, you should consider working with a lawyer. They will put together a brief summarizing why you are asking for an appeal and will point out any inconsistencies in the original ruling.
The court will then review the brief, along with transcripts of the hearing, and either uphold or overturn the previous child custody ruling.
You should also know from the very beginning of this process that the higher court (the appellate court) will base its decision on the very same principles the lower court used. In other words, the judge will determine custody based on the best interests of the child standard.
In addition, you will not be allowed to introduce new testimony or ask the court to hear from new witnesses. The appellate court will make its decision based on a review of the existing court transcripts and your lawyer’s appellate brief. In most cases, you will not have the opportunity to speak directly with the appellate court judge or be present while they review the documentation.
Can a lawyer obtain appellate review of a sanctions order by piggy-backing on her client’s notice of appeal? The Court of Appeals for the First Circuit raised this question sua sponte in a decision issued on March 26, 2014, In re Joannie Plaza-Martinez.
A federal public defender appealed a sanctions order against her as well as her client’s sentence in a single notice of appeal. The notice of appeal was “unarguably proper” as to the client. Whether it was also proper as to the public defender’s appeal of the sanction order was “an unresolved jurisdictional question.”
The court noted that “the better practice is for an attorney who wishes to challenge a sanctions order directed at him or her to file a separate notice of appeal.” Nonetheless, the court held that it has “jurisdiction over a claim of error made by a lawyer who, rather than filing a separate notice of appeal to challenge a sanction imposed in the course of a case, piggy-backs on the client’s notice of appeal; provided, however, that the notice of appeal unambiguously manifests the lawyer’s intention to appeal the sanction.”
Robert M. Palumbos
Rob Palumbos is chair of the Appellate division of Duane Morris’ Trial Practice Group. Rob is an appellate lawyer with a track record in over 80 appeals of preserving trial court wins and reversing trial court losses. Read his bio.
An appeal is a procedure by which a party who has been adversely affected by what he or she believes to have been an error or mistake by a judge of the Family Court may seek to have that order overturned in a higher court.
The party who proceeds with the appeal is called the appellant. All parties against whom the appellant seeks reversal (regardless of their posture before this court) are referred to as respondents. The appeal is not a form of new trial.
Basically, the same evidence that was before the trial court is placed before the appellate court and the parties to that appeal argue on papers and at a brief oral argument, that the trial judge, in reaching his or her decision on that evidence, did commit an error that requires reversal. This evidence is called the record of appeal (or the record).
What rulings are appealable?
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. The general rule is that an appeal may only be taken from an order. An order is a written determination of the court.
Can I appeal an order made on default?
It has often been held that a judgment or order made on the default of an appealing party is not appealable. The remedy, instead, is to move to vacate the default order under CPLR 5015 (a) (1) and, if that motion is denied, an appeal is taken from the order denying vacatur. The rule is the same for Orders made on the consent of the appealing party.
Can I appeal an order from a Support Magistrate?
Specific written objections to orders of Support Magistrates can be filed with the Family Court, for review by a judge. This differs from the appellate process. Once a Family Court judge has considered the filed objection, and issued a decision and order, at that point an appeal can be filed.
Sources of jurisdiction:
Family Court Act § 1112 (a) is the general provision of the Family Court Act regarding appealability. It provides that 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.’
The term ‘order of disposition’ is intended to be synonymous with a final order or judgment, that terminates an action or proceeding by granting or denying the relief demanded in the proceedings. The second sentence of subdivision (a) of §1112 further provides that an appeal may be taken as of right from an ‘intermediate or final order or decision in a case involving the abuse or neglect.’
How does a person take an appeal to a higher court?
When a person is dissatisfied with the order of the Family Court in their case, they may, under certain circumstances, take an appeal to a higher court.
This summary attempts to outline what is appealable, where an appeal is prosecuted and how the appeal process should be initiated. This summary does not, however, provide detailed information about the appeal process. Anyone thinking about an appeal should consult an attorney.
Information — about how an appeal is to be argued, how many copies of the appellate briefs must be filed and similar matters — may be obtained from the Appellate Division.
What is the time limit to file an appeal?
An appeal from the Family Court must be taken:
- Within 30 days after service by a party or a Attorney for Child upon the appellant of the order sought to be reviewed;
- Within 30 days after receipt by the appellant of a copy of the order in open court; or
- Within 35 days after the mailing of the order to the appellant by the clerk, whichever is earliest (Family Court Act 1113).
How to file an appeal.
In accordance with Appellate Division Rule 670.3, one original and two copies of the following documents are to be filed with the clerk of the Family Court:
- Request for Appellate Division Intervention Form (RADI);
- Notice of Appeal;
- A copy of the order you wish to appeal (F-99 or Clerk’s Certificates are not acceptable).
Adverse parties must be mailed copies of the above and proof of such mailing must be presented to the clerk upon filing. A receipt from the Postal Authorities is acceptable. In addition to filing the above with the clerk of the Family Court, it is wise to present an additional copy, as having been received for your records to verify your filing date.
What is the Appeals Procedure for Pro Se Clients?
The following documents are provided by the Family Court to assist you in perfecting your appeal:
- Request for Appellate Division Intervention Form (RADI)
- Notice of Appeal
It is your responsibility to obtain from the court a copy of the order from which you wish to appeal.
Pro Se Appeal Procedure
You should prepare six (6) complete copies of the following documents for filing in this court: (1 original and two copies to Family Court to file on your behalf, 1 or more copy(ies) to your adversary(ies), 2 copies for your file.)
- Request for Appellate Division Intervention Form (RADI)
- Notice of Appeal
- A copy of the order you wish to appeal
- A receipt from the Postal Authorities of mailing to your adversary
You MUST mail to your adversary a complete copy of the Request for Appellate Division Intervention Form (RADI), Notice of Appeal and a copy of the order from which you wish to appeal.
IF YOU WISH ASSIGNMENT OF FREE COUNSEL YOU MUST FOLLOW THE FOLLOWING INSTRUCTIONS:
Instructions For Asking For A Free Attorney On Appeal From The Family Court After The Notice Of Appeal Has Been Filed
If you wish to apply to the Appellate Division to file as a “Poor Person” and request that an attorney be assigned to prosecute your appeal, you must follow these additional instructions:
This guide is intended to provide some helpful information about family law appeals in the Court of Appeal for Ontario. This guide does not constitute legal advice and it may not include information that applies to your particular case. Please note that court staff cannot provide legal advice or complete your court documents for you.
For more information, please see:
To which court do I appeal?
The chart below sets out some *general* rules that apply in *most* cases. Exceptions apply. Please see the applicable legislation and rules of court for a *complete* guide.
Any, unless otherwise specified in the legislation (for example, see row below regarding jurisdiction/extra-provincial matters)
Superior Court of Justice
See legislation under which original order was made
Court of Appeal
(leave is required, unless the original order was made under Part V or VIII of CYFSA (child protection, adoption, and openness matters))
Sections 22, 41, 42, or 43 or the Schedule to s. 46 of the CLRA (jurisdiction/extra-provincial matters)
Court of Appeal
(leave is required)
Court of Appeal
(leave is required)
Final (monetary only, <$50K)
Court of Appeal
(leave is required)
Final (other than monetary <$50K)
Provincial legislation only
Court of Appeal
(leave is required, unless the original order was made under Part V or VIII of CYFSA (child protection, adoption, and openness matters))
Final (other than monetary <$50K)
Federal legislation (regardless of whether there are also orders made under provincial legislation)
Court of Appeal
Sections 22, 41, 42, or 43 or the Schedule to s. 46 of the CLRA (jurisdiction/extra-provincial matters)
Court of Appeal
(leave is required)
Court of Appeal
(leave is required)
Final (monetary only, <$50K)
Court of Appeal
(leave is required)
Final (other than monetary <$50K)
Court of Appeal
Sections 22, 41, 42, or 43 or the Schedule to s. 46 of the CLRA (jurisdiction/extra-provincial matters)
Court of Appeal
Appeals from the Ontario Court of Justice should be made to the Superior Court of Justice, unless it is provided in legislation that it should go to another Court. Note that there are special rules for appeals from the Ontario Court of Justice to the Superior Court of Justice. Also, you should look at the legislation under which the order was made to see if there are special rules that apply to your type of appeal.
Some statutes also have additional restrictions on appeals. For example, under the Divorce Act, there are two specific restrictions on the appeal process:
- No appeal lies from a judgment granting a divorce on or after the day on which the divorce takes effect;
- No appeal lies from an order made under the Divorce Act more than 30 days after the day on which the order was made.
Do I need leave to appeal to the Court of Appeal?
In some cases, you need “leave to appeal”. This means that you need the court’s permission to appeal. To ask for permission, you need to make a motion to the court explaining why they should hear your appeal.
If your appeal is to the Court of Appeal or the Divisional Court, see Rules 61, 62 and 63 of the Rules of Civil Procedure and Rule 38 of the Family Law Rules.
Where leave to appeal is needed, you must:
- Serve a notice of motion for leave to appeal within15 days after the date of the order you want to appeal, and
- File the notice of motion within 5 days of service, unless otherwise provided by statute.
Motions for leave to appeal to the Court of Appeal are in writing. A motion record, factum and transcripts (if any), are needed for the motion.
If the court gives you leave to appeal, a notice of appeal must then be served and filed within seven days.
In certain cases, the motion for leave to appeal will be heard together with the appeal. This means that you will present your motion for leave to appeal at the same time that you present your appeal and the court will consider both questions at the same time. For example, in an appeal of a temporary order made under the CYFSA, and brought to the Divisional Court as a temporary order of a Superior Court Justice the motion for leave to appeal is combined with the notice of appeal and both are heard together.
How do I start a family law appeal to the Court of Appeal?
The general rule is:
- If no transcript of oral evidence is required, the appellant must perfect the appeal within 30 days after filing the notice of appeal;
- If a transcript of oral evidence is required, the appellant must perfect the appeal within 60 days after receiving notice that the transcript of oral evidence has been transcribed.
Timelines are shorter for child protection matters:
- If no transcript of oral evidence is required, the appellant must perfect the appeal within 14 days after filing the notice of appeal;
- If a transcript of oral evidence is required, the appellant must perfect the appeal within 30 days after receiving notice that the transcript of oral evidence has been transcribed.
When will my family law appeal be heard?
Family law appeals are heard more quickly, usually within 3-4 months from the date on which all the necessary materials have been filed with the court.
Appeals of extended society care orders, with no access, are specially managed by the court. You will likely be contacted to schedule a conference over the telephone with a judge if you have not filed all the necessary materials for your appeal with the court within 14 days.
What about fresh evidence?
The general rule is that you must rely on the same facts on appeal that you did at trial.
But, if “fresh” evidence – evidence that existed at the time of trial but you didn’t know about – or “new” evidence – evidence based on new developments since the trial – concerns the child’s best interests, the court may want to hear about it. You may try to introduce fresh or new evidence by making a motion.
The Court of Appeal office may also be contacted through the following:
Court of Appeal for Ontario
130 Queen Street West
Telephone number: (416) 327-5020
Toll Free at 1-855-718-1756
Facsimile number: (416) 327-5032
Sometimes Judges impose seemingly harsh decisions which can include (at times) sanctions for monetary penalties and mandatory participation in programs and/or court sanction organizations. Appealing contempt of Court in a Civil case is seldom discussed and well understood by parties to litigation as well as many of their attorneys.
I have decided to give you a brief introduction to this topic in this post.
A proceeding to enforce litigants’ rights under Rule 1:10-3 is essentially a civil proceeding to coerce a defendant into compliance with the court’s order for the benefit of the private litigant. Thus, an application for relief under Rule 1:10-3 is distinguishable from a criminal contempt proceeding which is ‘essentially criminal’ in nature and is instituted for the purpose of punishing a defendant who fails to comply with a court order. Accordingly, relief under Rule 1:10-3, whether it be the imposition of incarceration or a sanction, is not for the purpose of punishment, but as a sanction intending to be a coercive measure to facilitate the enforcement of the court order.”
An Appellate Court will review a trial court’s imposition of sanctions against a litigant pursuant to the “abuse of discretion standard”. “An abuse of discretion” arises when a decision is made without a certification in opposition to a plaintiff’s motion.
In a recent published case a defendant filed an appeal challenging two earlier orders and was in the process of seeking to stay these orders pending appeal when the plaintiff filed another Rule 1:10-3 application. The Appellate Court was unable to conclude that defendant’s delay in paying the sanctions was willfully contemptuous.
A trial judge who handles contempt motions must set forth findings of fact to impose sanctions rather than just setting forth the facts which first led to the court’s decision. A judge cannot merely state he/she is granting the motion for the reasons set forth in plaintiff’s pleadings. Such an approach does not constitute adequate fact finding. In In re Trust Created by Agreement Dated December 20, 1961, 399 N.J. Super. 237, 253-54 (App. Div. 2006), aff’d, 194 N.J. 276 (2008). The Appellant court held that a trial judge may grant or deny a motion for the reasons offered by the parties only if “the judge makes such reliance explicit”; makes “clear the extent of his or her agreement with and reliance on the proposed findings of fact and conclusions of law”; and “supplie(s) a summary of his or her findings in the opinion” that clearly demonstrates “that the trial judge carefully considered the evidentiary record and did not abdicate his or her decision-making responsibility.”
To discuss your NJ Appeal matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at [email protected] Please ask us about our video conferencing consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Appeals Attorney
As a Chicago family law attorney, I am often asked by clients if they can appeal a family law court order. You have a right to appeal a final decision from the family law court and you also may have a right to appeal a decision from a family law court that is not a final decision or one that is final but does not dispose of all of the issues involved.
Table of Contents
The Process to Appeal a Family Law Court Order
Once you have a decision from the court that resolves all issues and you want to have a higher court review the decision you can do that through the appeal process. There is a time limit that must be strictly adhered to as there is very little leeway if any when specific dates are not met. It is important to remember that when you appeal your case to the appellate court, it is not another “bite of the apple” or chance to have your case heard all over again in an attempt to gain a different decision. The purpose of appealing to the appellate court is to review the underlying case exactly as it was heard and decided by the trial judge.
Appellate Court and the Standard of Review
There are different standards the appellate court uses to review cases depending upon the type of case. This is known as the “standard of review”. In most family law cases where the trial court has discretion when they make decisions and enter orders, the standard of review applied is “abuse of discretion”. This means that the appellate court will carefully review the pleadings, the evidence used at the trial, and the transcripts of the testimony and made a determination as to whether or not the family law court abused its discretion in deciding your case.
Was There an Abuse of Discretion by the Family Court?
In other words, the appellate court does not look at everything and make a new determination and maybe the appellate court would make a different decision if they were the trier of fact (trial judge). That is not their role in a family law appeal.
The role of the appellate court in appealing a family law court order is to make sure that the trial judge’s decision was one that could have been made based upon the pleadings, evidence, and testimony. The appellate court does not determine whether it would have made the same decision. They make a determination that the decision could have been made so there is no abuse of discretion. If there is no evidence the court abused its discretion the trial court ruling will stand. This is when the appellate court affirms the trial court’s decision.
When the Family Court Abused Its Discretion
In the event the appellate court finds that after review of the pleadings, evidence and testimony the trial court abused its discretion and should not have entered the ruling that it did, the appellate court will do one of two things, they will either:
- remand the case back to the trial court with specific directions on what needs to be done such as further hearings on one or more issues, OR
- reverse the decision outright which does not require the case to go back to the trial court for further hearing.
In summary, the standard of review is the amount of deference or leeway the appellate court will give to the trial judge’s order that is on appeal.
The Illinois Marriage and Dissolution of Marriage Act gives the trial court a lot of deference in making decisions since they have firsthand knowledge at the trial and can determine the credibility of the witnesses. Credibility is important in family law cases since many of the trials come down to “he-said / she-said” cases.
If the trial court enters a Judgment that states one, both or neither of the parties were credible witnesses, the appellate court weighs that very heavily. However, if the family law court order on appeal is a question of law and not deference the appellate court will review the pleadings, evidence, and testimony as though it is considering the case for the first time. This allows the appellate court to substitute its own judgment about the application of the law in the case and make its own determination. This is not often the case in family law matters but it does happen.
Thinking of Appealing a Family Law Court Order?
Talk to an Experienced Family Law Attorney Right Away
When it comes to appealing a court order or judgment it is important to be aware of the thirty (30) day time limit to file an appeal. As such, be sure to talk to an experienced family law attorney right away. If you are in the Chicago area contact the family law attorneys at Anderson & Boback to discuss the possibility of appealing the family law court order in your case.
There are a number of steps in filing an appeal in the Supreme Court. Before you take any of these steps, please read and be familiar with the Supreme Court Practice Note SC CL 9.
The process set out below is contained in the Supreme Court (General Civil Procedure) Rules 2015 and Supreme Court (Miscellaneous Civil Proceedings) Rules 2018.
Step 1: get the documents you need together
The documents you will need are:
Notice of Appeal
Summons – Form 46A
Certificate Identifying Exhibit – Form 43A
Copy of Magistrates Court Order
Any written reasons of the Magistrate
Any transcript of the Magistrates Court hearing
Step 2: draft and file your Notice of Appeal
You must get the Court’s permission for your appeal to go ahead. This is called seeking ‘leave to appeal’. The Notice of Appeal form includes this request.
In your Notice of Appeal form, you must also state each law or legal principle you believe the Magistrates Court got wrong. These are your ‘questions of law’ and are phrased as a question in your Notice of Appeal.
Each question of law needs to have ‘grounds for appeal’. Your grounds of appeal should be short explanations as to why you think the Magistrate made the wrong decision from a legal point of view, in relation to each question of law.
Step 3: get a date for a directions hearing
To get a date for your directions hearing you need to do the following:
complete a Judicial Review and Appeals List hearing date information form
complete a draft Summons (Form 46A)
email both documents to the address on the form ([email protected])
When the Court seals the Summons you will be given a date when the application will be heard in front of a judge.
There is a filing fee associated with the Summons – refer to Prothonotary’s Office Fees Schedule. If you intend on claiming financial hardship you will need to file a Fee Waiver Application.
Step 4: file additional documents
Within seven (7) days of filing your Notice of Appeal, you must file the following documents:
Summons – a completed Form 46A Summons which includes the date for the directions hearing. If you are appealing more than 30 days from the Magistrates Court decision, state that you are “seeking leave to appeal out of time”.
Affidavit – An affidavit sets out the facts and circumstances that you will rely on to support your appeal. Attach to the affidavit:
a copy of the Magistrates Court order you are appealing;
any written reasons the Magistrates Court prepared in relation to the decision;
any other documents you intend to rely on for your appeal, such as a Magistrates Court transcript.
Do not delay filing your affidavit if you do not have all the documents. You can always file another affidavit later.
If you are appealing more than 30 days after the original decision, briefly explain why you are applying late and any exceptional circumstances. Attach to the affidavit as an ‘exhibit’ any documents that support your request to appeal out of time, such as a medical certificate.
Exhibit: attachments to the affidavit are called ‘exhibits’. Complete a Certificate Identifying Exhibit (Form 43A) for each exhibit.
Step 5: serve documents
You need to serve sealed copies of the documents to the other parties as soon as possible, no less than 14 days before the directions hearing.
If you are serving an individual, you need to leave the documents with them in person.
If you are serving a company, you need to post them to the registered office of the company.
Please refer to Order 6 of the Supreme Court (General Civil Procedure) Rules 2015 for more detailed information on how to effect service.
Step 6: attend directions hearing
The purpose of a directions hearing is to set a timetable of the orders up to and including the hearing. It is not when you present your arguments to the Court.
You are expected to attend the hearing.
Orders will be made about what documents need to be filed and when, and what actions the parties must take. You will usually get a date for the final hearing as well.
When can you appeal a court decision in South Africa?
The application must be brought within 15 court days of the date of the decision against which leave to appeal is sought.
Within 10 court days of such application, the respondent(s) must indicate in writing whether they oppose the application and, if so, on what grounds.
What are the steps involved in appealing a decision?
Choosing an attorney to handle your appeal. Not every trial lawyer can successfully handle appeals.
Reviewing the Record on Appeal. Your attorney will obtain the Record on Appeal from the trial court clerk.
Learn how to “appeal” your case if you disagree with the final decision reached by the judge after your trial.
Overview of Appeals
If you disagree with the decision reached after your trial, you can file an “appeal.” An “appeal” is a request to have a higher court change or reverse a judgment of a lower court.
When you appeal, the entire case is reviewed by a higher court. The appeals court will look at the evidence that was presented to the trial court to decide whether some legal error was made. An appeal doesn’t allow you to re-do your trial. You won’t be able to submit new evidence. The appeals judge will only look at what you submitted to the trial judge. Depending on what the appeals court decides, it can set aside, confirm, or modify the trial court’s judgment and could even order a new trial.
Appeals can be complicated, expensive, and lengthy. Before you decide to file an appeal, it is a good idea to meet with a lawyer and find out if you have a basis to appeal and the likelihood of success. Visit Lawyers and Legal Help for more information about where to find a lawyer.
An in-depth discussion of appeals is beyond this website’s scope. This website provides only a general overview. Appeals can be complicated, so make sure you understand all the rules that apply to your type of case and appeal. Nevada Supreme Court appellate rules can be found in the Nevada Rules of Appellate Procedure.
The Appeal Process
Appealing a custody case follows the same general rules and procedures as appealing a divorce case. For a discussion of the appeals process, please visit the Appeal page in the divorce section of this website.
Retraining, protective, or stay away orders can arise in a multitude of situations, from business arguments to domestic disputes. And fighting a restraining order can take many forms, depending on the type of order involved and the particular circumstances of your case.
Most restraining orders are orders from a court, and therefore can be appealed. It may not be easy to get a restraining order amended or overturned, but it’s not impossible. Here’s what you need to know if you’re appealing a restraining order.
The Right Response
Normally you should receive notice that a restraining order has been filed or requested against you, and how you respond to the restraining order can make all the difference. If you receive the notice in court, be respectful and try to avoid any outbursts — you may not be able to win your case right then and there, but you can certainly do some damage. So let your attorney make any in-court legal arguments.
If you receive notice through the mail or in-person delivery, most states provide a form or instructions for responding to the restraining order. For instance, California provides an information sheet answering questions from how long the order will stay in place to how it could affect a green card or citizenship. Make sure you follow any instructions and don’t violate any temporary orders before you have the chance to appeal.
The Right Hearing
You will either file a response to the restraining order, or, more likely, be asked to attend a hearing. Most courts will set a hearing date to discuss the order; if not, you may be able to request one. Don’t miss your court date — this may be your only chance to appeal the restraining order.
Prior to your court date, you should begin gathering evidence that supports your side of the story. Make sure you have any witnesses, recordings, or documents ready to go on your court date. Your attorney should be able to tell you what you’ll need.
If your hearing has already come and gone, and you want to amend or end a restraining order, you may have to file an appeal and request another court date. Just as you did with your original hearing, make sure you have any evidence of compliance with the original order and any change in circumstances since the restraining order was first filed.
An experienced attorney will your best resource for appealing a restraining order — contact on e near your today.
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You cannot submit an appeal just because you do not agree with the judge’s decision. You will be required to show you have grounds to appeal the decision.
Grounds of appeal
You will need to show that the decision of the judge of the lower court was:
- wrong, or
- unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
You will need to show that the judge did not apply the law correctly, did not follow the correct procedure, or that there are other strong reasons why the decision was wrong or unfair. You cannot appeal based solely on the fact that you do not agree with the decision.
There is a strict 21 day time limit to submit an appeal for a final order.
If this time has expired, you can ask for permission to submit the appeal out of time. You are able to do this on the application form and you will need to explain why you did not submit the appeal within the 21 day time limit. The judge will consider the reasons for the delay and the effect of the delay on the case.
There are limited circumstances where a judge may give a different time frame to submit an appeal so you should always check the court order to see if this applies.
Who do I make my appeal to?
Decisions made by Magistrates, a lay justice or a District Judge sitting in the Family Court will be heard by a Circuit Judge sitting in the Family Court.
Decisions made by a District Judge of the High Court, a Circuit Judge or Recorder in private law child proceedings will be heard by a High Court Judge sitting in the High Court.
Decisions made by a High Court Judge sitting in the High Court, Circuit Judge or Recorder in public law child proceedings will be heard at the Court of Appeal.
You will not be required to obtain permission to submit an appeal if the decision was made by a Magistrate. You will be required to obtain permission if the decision was made by any other judge. This should generally be requested orally at the hearing when the decision is made. If the judge refuses you permission, you can seek permission to appeal from the appeal court. You make this request on the appeal notice which you will lodge with the appeal court.
Once you have submitted you appeal, the court will consider whether to grant you permission. It can refuse permission on the basis of the application, without holding a hearing, however generally this will only be where you have exceeded the time limit to submit the appeal.
In most appeals, you will be informed of a date of a hearing whereby the appeal judge will look over the information you have submitted, hear any submissions and ask questions about your application. They will then decide whether your appeal has a real prospect of success or whether there is any other compelling reason why you should be given permission to appeal.
How to submit an appeal
The application to appeal is called the Appellant’s Notice. If you are appealing to the High Court then you will need to complete the FP161 form. If you are appealing to any other court, you will be required to complete the N161 form.
You will need to detail why you are appealing the decision, including the grounds you wish to rely on. The form will give you further information on additional documents you will need to send with the application form.
There is more information on submitting an appeal on the EX340 form.
If an appeal fails, the appellant can be asked to cover the legal costs of the other party. This is one of the reasons why we always advise to seek independent legal advice before submitting an appeal.
If you are unhappy with the terms of the Order and would like to change these, you could consider making an application for variation . You could also consider discharging the court order completely. Please see our How to Guide on Variation and discharge of an order for contact or residence for more information.
The Child Law Advice Service is limited on the advice we can provide in this area. Therefore, due to the complexities of this subject, we would strongly recommend that you seek the advice of a solicitor before pursuing an appeal.
If you are a young person who requires advice and information click here to visit LawStuff, our website dedicated to providing advice and assistance to young people.
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This information is correct
This information is correct at the time of writing ( Jul 29, 2021 @ 2:07 pm ). The law in this area is subject to change. Coram Children’s Legal Centre cannot be held responsible if changes to the law outdate this publication. Individuals may print or photocopy information in CCLC publications for their personal use. Professionals, organisations and institutions must obtain permission from the CCLC to print or photocopy our publications in full or in part.
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Section 42 of the Family Law Act 1996 allows the court to make a Non-Molestation Order to provide protection to victims of domestic abuse. It is there to make sure a perpetrator does not harass, intimidate, or cause any sort of harm to the victim by prohibiting them from approaching the victim either directly or indirectly. A Non-Molestation Order can be made ex-parte (without notice) for roughly a maximum period of 14 days before a hearing is scheduled to allow the perpetrator to defend his case. At this hearing, the Non-Molestation Order is then either extended for a period of some months or in rare cases a little longer. The order is primarily there to allow the victim to escape the abuser but is not typically used as a long-term solution. In short, a Non-Molestation Order can be appealed.
How do you appeal a Non-Molestation Order?
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Manjra v Shaikh  EWHC 1805 (Fam) was a case which reached the High Court of Appeal as the Non-Molestation Order which was originally granted to the victim did not have an end date. A highly unusual case, the judge who drafted the original Non Molestation Order did not put an expiry date on the Non-Molestation Order, meaning that it continued long after the wife and husband had divorced.
The original case was heard in November 2016, at which point the Non-Molestation Order was granted to provide protection to the wife. In January 2020, the husband attended another hearing to ask for the Non- Molestation Order to be discharged. As it had been 3 years since the original order had been made, and there had been no further incidents since, the husband argued there was no need for the order to still be active.
The wife defended the need of the Non-Molestation Order stating that it was doing its job by providing a warning to the husband not to cause her any harm. She argued that protection did not have a time limit.
What did the judge say?
The judge ruled that it was against the standard good practice for the original judge to have made an order without any time restrictions. The judge reported that a Non-Molestation Order typically lasts for a maximum of 12 months and if there has been any trouble then it can be extended. The judge also said that as there had been no recent incidents, she could not under any legal rule make a Non Molestation Order at this time. However, she concluded that as there was no harm coming to either party, ‘It does not seem to me any good reason now … to change it.” The judge then ordered for the Non-Molestation Order to continue indefinitely.
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Can a Non-Molestation Order last forever?
Not quite. In May 2020, the husband was granted a right to appeal. In the appeal case, it was concluded that the judge who continued the order indefinitely had perpetuated the failure of good standard practice by first recognising that the original Non-Molestation Order should not have been made without an end date but then did the exact same thing by ordering that the Non-Molestation Order to continue indefinitely.
This did not make sense to the appeal judge. The judge ruled that for the Non-Molestation Order to continue, the wife could raise recent allegations at another hearing and the husband could have the right to challenge them. If the burden of proof was met, then the Non-Molestation Order could be extended but not indefinitely as it was previously ruled. The appeal judge made the continuation of the order until ‘further order’.
What is so special about this case?
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The main points about this case are that it is important to note there has to be a time limit for a Non-Molestation Order. The court recognises that victims of domestic abuse need protection, however, it is not legally feasible for an order to continue forever, especially when there have been no further incidents. This case is of huge importance as it shows that for a Non Molestation Order to be granted, there has to have been recent incidents of abuse and that all Non-Molestation Order’s can be extended but not without good reason. All Non-Molestation order’s should also have a time limit as these orders do have powers of arrest attached to them. Therefore, having an ambiguous timeline for an order so important, it carries up to a 5-year prison term if breached, should not be made common.
Its crucial to note though, that the appeal judge did not say that a Non-Molestation Order could not continue forever. The emphasis was more on the fact that a few years had passed since the last incident of recorded abuse and that it was unfair for the order to continue without at least allowing the husband to provide his defence. It was made clear that an order should only be granted or extended if there is a need which in this case, it was concluded there was no need.
Please do note that this Article is NOT Legal advice and should not be treated as legal advice.
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You cannot appeal a court’s decision simply because you are unhappy with the outcome; the trial judge must have made a mistake that serves as a “ground” for your appeal. (A “ground” is a legal term that means a cause or basis.) We explain the types of mistakes that might be grounds to file an appeal in the section called What are the typical “grounds for appeal” that judges will consider? Usually, you must also have pointed out that mistake to the trial judge at the time it was made by objecting in court during the trial. This is called “preserving your record.” You can read more about how objections can preserve the record for appeal in What steps do I need to take during the trial to set myself up for possibly being able to appeal if I lose?
What are the typical “grounds for appeal” that judges will consider?
Although it may vary by state or by the type of case that you are appealing, typically the grounds for an appeal are as follows:
The judge made an error of law
An “error of law” generally means that the judge in your case applied the wrong rule or “legal standard” to the facts of your case. This can occur if a trial court did not follow either the statute or case law in your state that is supposed to apply in your case’s circumstances. For example, in custody cases, a judge must determine what is in the child’s best interests. Most states have laws setting forth certain factors that must be considered, typically called “best interests factors.” If one of those factors is whether or not a parent committed domestic violence but the trial judge ignores domestic violence evidence in making the custody determination, you may have grounds to appeal based on an error of law.
An error of law is the strongest type of ground for appeal because the appellate court reviewing the case does not have to give any weight to what the trial court judge did. The appellate court will look at the law that was supposed to be applied and decide whether or not the trial court judge made a mistake.
The judge made an error regarding the facts
Generally, a judge’s ruling in the trial court must be based on the facts that are proven at trial. In most cases involving domestic violence and family law, there is no jury and the judge serves as the “fact finder.” As fact finder, the judge must consider the evidence and decide whether or not a certain fact has been proven. Because the trial judge has the opportunity to directly observe the evidence through witness testimony and documents, photos, etc., most appellate courts will very rarely second guess a judge’s factual findings. Therefore, a trial judge’s factual error is the most difficult to establish on appeal. Appellate courts will generally not overturn a factual finding unless it is clearly wrong (“erroneous”) and the record leaves absolutely no question that the judge was wrong.
The judge “abused his/her discretion”
A trial judge has a great deal of power to make decisions in a case, with the exception of decisions that are strictly about applying the law. Examples of this broad power, known as “judicial discretion,” include what evidence to admit during the trial, whether to grant a motion or request made by a party, and whether to grant a protection order or approve a proposed settlement agreement. Appellate courts respect the trial court judges’ discretionary power because they recognize that trial judges are in the best position to make these decisions. In general, an appeals court will go along with (“defer to”) a trial court judge’s decisions that are within the judge’s discretion.
Most types of errors will fall into this category of judicial discretion and they are very difficult to win on appeal, although not quite as difficult as in the case of factual errors. If a judge makes an error when using this discretion, it will not be a sufficient ground for appeal unless you can show that the judge “abused” this discretion. In “abuse of discretion” cases, the error is obvious because, for example, the evidence introduced at trial clearly does not support the judge’s decision or the judge’s decision was completely unreasonable. For example, let’s say in a custody case, when weighing the required factors to determine what is in the child’s best interests, the judge applies a lot of weight to the fact that the other party’s home has one more bedroom than yours, but applies very little weight to the fact that the other party has committed domestic violence and has a substance abuse problem.
As with most legal matters that end up in court, one or more parties is likely to be dissatisfied when the court issues its final ruling, leading them to ask: Can you appeal a probate decision? Or, conversely, how can you best defend the court’s decision in your favor if another party appeals?
Probate court appeals can be complicated. First of all, not every decision can be appealed; certain criteria must be met if you hope to successfully appeal a probate court decision. Furthermore, the time to appeal is limited. It is important to remember that winning an appeal in probate court – either as the appellant or the respondent – is anything but easy. It helps to have a lawyer with ample appellate experience, ingenuity and a nuanced understanding of probate, trust and estate law.
When looking for for probate appeals attorneys, it is a good idea to limit your search to lawyers with substantial appellate experience whose practice solely focuses on probate law, since they are likely to have the combination of skills needed to provide you with the best chance of winning your probate appeal.
In this article, we will go over how to appeal a probate court decision in California, what it takes to successfully appeal a probate court decision, the types of probate decisions that can be appealed, and the time limits for bringing a probate appeal.
Can You Appeal a Probate Court Decision?
The short answer to whether you can appeal a probate decision is that it depends. If you can answer “yes” to all the questions below, if you act promptly, you most likely can appeal the probate court decision. But, to be sure, you will want to discuss your case with an experienced probate appeals attorney.
Has the Probate Court Issued a Final Order?
Like with most types of cases, the court generally has to issue a final order before a probate appeal can be launched . However, what’s different with probate is that the entire case does not have to be decided in order to appeal a probate court decision in California . Since the court can pass down numerous decisions over the course of estate administration and trust administration , a final order may only be required for the specific decision you wish to appeal.
As an example, within the same decedent’s estate, one matter may relate to misconduct on the part of the executor of the estate and another matter may be a will contest . If you wish to appeal the probate court decision relating to fiduciary misconduct, it may not be necessary for you to wait for the will contest case to conclude before bringing your appeal; furthermore, it may be too late to appeal if you do wait.
Did the Court’s Decision Involve a Specific Legal Error or Factual Mistake?
Simply disagreeing with the court’s decision is not a basis for a probate appeal. Generally, to have grounds for an appeal, you must be able to show from the record before the probate court that the probate judge made a mistake in interpreting or applying the law, committed an error in deciding what evidence could or could not be considered, or had no basis from the facts before it to support the decision made. You must be able to demonstrate the error from the record in the probate court.
For example, if the court made its judgment based on evidence you offered, but, in error, refused to consider it, you might have a basis for appeal. But if you never offered the fact you are now contending should change the result, or if you offered it but there is no record that you did so, that fact would likely be excluded as part of the probate court appeals process.
Did the Error Affect the Outcome of the Case?
While you need to demonstrate error to be successful in your appeal of a probate court decision , that is not enough to have a solid chance at winning an appeal in probate court . You also have to prove that the alleged error was prejudicial , meaning that it affected the outcome of the case. To determine this, ask yourself: If the error hadn’t been made, would the court’s decision have been different? If the answer is “yes,” then you likely have the grounds to launch a probate appeal . If the answer is “no,” the appellate court will likely deny your appeal.
Getting Help to Appeal a Probate Court Decision
Winning an appeal in probate court is no easy feat, nor is it likely to be cheap. It is best to speak with a probate appeals attorney as soon as possible about what occurred in probate court as well as about what you hope to achieve through an appeal. If possible, you should do this before starting the probate court appeals process. A probate attorney experienced in appeals and in trust and estate litigation will be able to provide insight into the strength of your appeal after reviewing the facts and law surrounding it.
As mentioned in the previous section, for a probate court appeal to have merit, your case must satisfy certain criteria. Not only will you have to explain on appeal the law and facts that show prejudicial error by the probate court, but you also will have to comply with the procedures for appeals to have any chance of winning an appeal in probate court , and those procedures are different from what you and your trial attorney experienced before in the probate court. You are more likely to have success on appeal with help from a trust and estate attorney who also has experience with appeals .
With a probate appeals attorney in your corner, you will not only be able to navigate your probate court appeal with ease, but you will have the benefit of a fresh look at your case. Appeals are not usually won by presenting arguments to the court in the same way they were previously presented to the probate court and hoping for a better result. And if you were the party who won in the probate court, you cannot be certain that just refiling the arguments that won previously will also result in a win on appeal. A probate appeals attorney can help you present your case to the appellate judges in the best possible light after reviewing the factual record and re-examining the applicable law.
In sum, your chances of winning an appeal may be improved with attorneys who litigate probate cases day in and day out and also have appellate experience — such as the estate and trust attorneys at Keystone Law. Appeals can be more complex than the original case in probate court, and you should have attorneys in your corner with the experience needed to address the new challenges that may arise during the probate appeals process.
The COVID-19 crisis has brought on several changes to eviction procedures and landlord-tenant law in Nevada. Tenants filing Answers/Affidavits in Las Vegas can file online from www.lacsn.org/efile by choosing ”SUMMARY EVICTION: Tenant’s Answer.” For more up-to-date information on the Eviction Mediation Program, click here .
Opposing, Modifying, Dissolving, Or Appealing A Protection Order – Civil Law Self-Help Center
CAUTION! If a protection order has been entered against you, DO NOT VIOLATE IT! Violation of a protection order is a crime punishable by fines and imprisonment. It is also a civil contempt of court. For more information about the penalties for violating a protection order, click to visit Overview of Protection Orders.
If someone is trying to obtain or has already obtained a protection order against you, you have a couple of options. You can file an opposition to the application or a motion asking the court to dissolve or modify the order, or you can appeal from the court’s grant of an extended protection order.
Q&A – Protection Order Motions And Appeals
How do I oppose an application for protection against me?
If you disagree with the the applicant’s request for a protection order against you, and the court has not granted it yet, you can file an opposition. After you file the opposition, the court will review it and consider the arguments. If the court has already scheduled a hearing, then you can also appear at the hearing and present your opposition argument there.
If the applicant has filed an application for protection against you, and the court has not granted it yet, and you disagree with the application, click underneath the form’s title below to download the opposition.
What is a “motion to dissolve,” and what happens if I file one?
If you believe the protection order was granted improperly or that it is no longer needed, you can file a motion asking the court to “dissolve” (terminate or cancel) the protection order. After you file the motion, the court will decide whether or not to schedule a hearing. If the court schedules a hearing and grants the motion, the protection order will become immediately void and unenforceable. A protection order can only be dissolved by the court.
What is a “motion to modify,” and what happens if I file one?
A motion to “modify” (change) the protection order is typically filed when the adverse party believes that the protection order is too broad or that the protection order is too burdensome. After you file the motion, the court will decide whether to schedule a hearing. A protection order can only be modified by the court.
What form do I use to file a motion to dissolve or modify the protection order?
- If the applicant obtained a protection order against you, click underneath the form’s title below to download the motion to modify or dissolve:
MOTION TO MODIFY OR DISSOLVE ORDER FOR PROTECTION
What is an “appeal,” and how would I file one?
If the court issues an extended order for protection, the adverse party can file an appeal to the district court. (There is no appeal allowed if the court denies an application to extend a protection order, only if the court grants the extension.) The district court will typically not hear new evidence on an appeal. The court will review the documentation and other information that was presented to the justice court in order to decide whether the justice of the peace made any error of law in granting the extended protection order. The district court can affirm, modify, or vacate the justice court’s order. (In other words, the district court can keep the order in place, change it in some way, or do away with it completely.)
There is a $97 filing fee to file an appeal, but there is no requirement that a bond be posted. Filing the appeal paperwork does not change the validity or enforceability of the extended order.
To appeal the grant of an extended protection order, the adverse party must complete and file the forms below with the justice court where the case is pending. Each of the forms is available, free of charge, and the Self-Help Center, or you can download the form by clicking one of the formats underneath the form’s title:
NOTICE OF APPEAL TO DISTRICT COURT
PDF Fillable | PDF Nonfillable
STATEMENT OF POINTS ON APPEAL
Pdf Fillable | Pdf Nonfillable
TIP! If the hearing on the extended protection order you’re appealing was recorded, you must order a copy of the hearing transcript from the court reporter and deposit $100 with the court (unless some greater amount was ordered). (JCRCP 74(b).) If the hearing wasn’t recorded, you must fill out and file the Statement of Evidence or Proceedings form below.
STATEMENT OF EVIDENCE OR PROCEEDINGS
Pdf Fillable | Pdf Nonfillable
The district court may issue an order setting the case for oral argument and may require the parties to submit written briefs. A form Appellate Brief is available, free of charge, at the Civil Law Self-Help Center or can be downloaded by clicking one of the listed formats underneath the form’s title below:
Click to visit our Basics of Court Forms and Filing for tips on how to fill out legal forms and file in the justice court, or click to visit Justice Courts for court location and contact information.
When you disagree with the decision of a judge about custody, parenting time, support, or property division, there are ways to try to get those decisions modified or even reversed. But, it is not easy to get rulings in family court changed because judges are given a lot of discretion in the decisions they make.
Time Is Of The Essence
However, if a judge makes a mistake in applying the law or with the facts of the case, you must take quick action to correct those mistakes, or you will lose your ability to change the order completely. An appeals court has very strict timelines and procedures which must be followed.
The first step generally to attempt to change an order after a divorce trial is through a “post-trial motion.” These are directed to the same trial court judge who decided your case originally. This is your chance to try to include facts that were left out or persuade the court that the facts and the law of your case did not support the conclusions the court came to.
By filing a proper post-trial motion, the strict time limits for taking a case before the Court of Appeals could be stopped until the motion is decided. Filing or not filing a post-trial motion can also impact how your appeal would be handled by the higher court. Once that post-trial motion has been ruled upon, then if you still are not happy with the result, you may “appeal” the case to the higher court. In Minnesota, the next court is the Court of Appeals.
But even before an appeal, you want an attorney who understands how to “preserve issues” for appeal at the trial level. If you haven’t done that, you may not get the opportunity to appeal anything about your order.
If you have questions about the appeals process and believe you may have grounds to appeal a final order in your family law case, you need to speak with an experienced and knowledgeable attorney. Contact one of the divorce attorney s at Perusse Nixon PLLC to discuss your case.
An Appeal Is Not A Retrial
When you appeal a family law order, you are not preparing for a “do-over” in court. You do not get a second chance to make new arguments or introduce new evidence. There is no trial, there are no witnesses, and no new information is submitted to the higher court. An appeal is to argue that there were errors made at the district court level, and as a result, the court’s order was incorrect. The appellate court will examine the record of your district court case to determine if errors were made that impacted the court’s final order issued in your case.
Request For Modification Rather Than Appeal
If you have discovered new evidence or there has been a change in circumstances since the court’s final order was entered, a request for modification rather than an appeal may be appropriate for your case. A request for modification means that you want the court to examine new facts and modify the order accordingly.
For example, you may ask the court to modify a spousal maintenance order because your financial circumstances have changed, or you may request a modification for child support because your child’s needs and expenses have changed, or your financial circumstances have changed. You might also find that modifying custody or parenting time is beneficial because of changes in circumstances.
Types Of Family Law Matters For Appeal
Most types of family law orders are eligible for an appeal if mistakes were made at the trial level including, orders for protection, modification, child custody, child support, property division, and spousal maintenance.
Attorneys Cindy Perusse and Jennifer Nixon represent clients in family law matters at the district court and appellate court level. They will provide you with an honest analysis and assessment of your case, what you can expect on appeal and the potential for success on appeal.
An appeal from a bankruptcy court’s final judgment must be filed within 14 days of when an appealable order is entered on the docket. Parties should not delay past the 14 days even if, for instance, the bankruptcy court must still decide a related request for an award of attorneys’ fees. Otherwise, an appeal will be untimely under Federal Rule of Bankruptcy Procedure 8002(a)(1).
There are three ways for decisions to be entered. The most common is for a judgment, order, or decree to be entered in a “separate document” from the underlying decision under Federal Rules of Civil Procedure 58(a), (c)(2)(A) and Federal Rule of Bankruptcy Procedure 7058. But if the court doesn’t enter a separate document within 150 days from when a decision is issued, then the entry date is deemed to be the 150 th day after the decision was issued, and appeals must be filed within 14 days of that date. Fed. R. Civ. P. 58(c)(2)(B). Finally, certain other rulings don’t need to be entered in a separate document. Id. 58(a)(1)-(5). [i]
A recent appellate decision shows how these rules work and offers helpful guidance for practitioners. PC Puerto Rico, LLC v. Empresas Martinez Valentin Corp. (In re Empresas Martinez Valentin Corp.) , No. 18-2103, 2020 U.S. App. LEXIS 2701 (1st Cir. Jan. 28, 2020). The debtor, Empresas Martinez Valentin Corp. (“EMV”), filed for chapter 11 in the U.S. Bankruptcy Court for the District of Puerto Rico. After the case was filed, PC Puerto Rico, LLC (“PCPR”), a party in litigation with EMV, seized personal property that EMV owned. EMV obtained a ruling that PCPR’s actions violated the Bankruptcy Code’s automatic stay and an award of damages.
The court’s decision was issued on April 4, but an appealable order wasn’t docketed then. Meanwhile, on April 18, EMV filed a motion for reconsideration seeking more damages than those awarded. The bankruptcy court denied that motion on May 30. On November 27, the bankruptcy court issued opinions and orders awarding EMV attorneys’ fees and costs and entered a judgment in EMV’s favor that referenced those awards and the April 4 th ruling on the stay violation. On December 8, PCPR appealed to the district court.
EMV moved to dismiss the appeal, arguing that it was untimely. The district court denied the motion and affirmed the bankruptcy court’s rulings concerning the stay violation and the fees and costs. PCPR then appealed to the U.S. Court of Appeals for the First Circuit. That Court reversed, holding that PCPR’s appeal was untimely.
The court noted that the initial April 4 decision was “a final judgment for appeal purposes.” 2020 U.S. App. LEXIS 2701, at *6. But the bankruptcy court didn’t enter an order during the next 150 days, or by September 1. Therefore, under the second option outlined above, the April 4 th order was deemed entered on September 1, and the 14-day appeal period ran until September 15. Therefore, PCPR’s appeal filed on December 8 was untimely.
PCPR had argued that the 14-day appeal period should have been calculated from November 27, when the bankruptcy court docketed the orders awarding fees and costs and the judgment. PCPR asserted that the fees and costs were “compensatory damages” that were part of the damages for the stay violation. But U.S. Supreme Court precedent makes clear that an award of fees related to an underlying litigation is considered “collateral” to the final order and doesn’t impact the calculation of when a party in PCPR’s position must appeal. Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l Union of Operating Eng’rs & Participating Emp’rs, 571 U.S. 177 (2014); and Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988).
PCPR’s appeal would also have been late if the 150-period ran from when the bankruptcy court denied EMV’s motion for reconsideration on May 30. The 150 th day from May 30 was October 28. The 14-day appeal period would have expired on November 11. And, thus again, the appeal filed on December 8 was untimely. 2020 U.S. App. LEXIS 2701, at *8.
The First Circuit made two final points. First, Bankruptcy Rule 8002’s deadline for parties to appeal is a jurisdictional one that can’t be waived. And, second, this rule “points counsel to a safe harbor that avoids all of this: when in doubt, file your notice of appeal, because a premature notice, unlike a late notice, can still be effective.” 2020 U.S. App. LEXIS 2701, at *11.
[i] A separate docket entry isn’t required for an order disposing of a motion for a judgment under Rule 50(b); to amend or make additional findings under Rule 52(b); for attorneys’ fees under Rule 54; for a new trial, or to alter or amend the judgment, under Rule 59; or for relief under Rule 60.
WHAT CAN I DO WHEN THE JUDGE GETS IT WRONG?
When you disagree with a Court Order, you have five basic options: (1) request correction of a clerical error; (2) file a motion for reconsideration; (3) file an appeal; (4) file a motion to vacate; and (5) file a motion to modify based on “changed circumstances,” which applies only to custody and support orders.
CLERICAL ERRORS. Correction of a clerical error can occur at any time and does not necessarily require a motion. Clerical errors include, for example, simple mathematical mistakes. But be warned, there is often significant disagreement over whether an error was merely clerical or was actually a substantive mistake. You can read more about correcting clerical errors here: [Guide to Clerical Errors.]
RECONSIDERATION. A motion for reconsideration must generally be filed within twenty days of receiving a final Court Order. However, when seeking reconsideration of a non-final Court Order (i.e., “interlocutory” or “pendente lite”), no time limit applies and the burden is much lower. You can read more about motions for reconsideration here: [Guide to Reconsideration.]
APPEAL. An appeal of a final Court Order must generally be filed within 45 days of the date on which the Order was entered. However, when appealing a non-final Court Order (i.e., “interlocutory” or “pendente lite”), you must generally file that appeal within 20 days of the date on which you received the Order. There are exceptions and circumstances in which these deadlines can be extended. You can read more about appeals here: [Guide to Appeals.]
MOTION TO VACATE. Even after those deadlines expire, you have another option: file a motion to vacate the Order. There are several reasons listed in the Rules of Court that might warrant vacating a Court Order. Depending on the reason for which you are asking to vacate the Court Order, you are required to file your motion within either one year of the Order’s entry, within a “reasonable time,” or at any time.
This section of the Divorce Guide discusses motions to vacate.
CUSTODY/SUPPORT ORDERS. The fourth option applies only to custody and support orders. Those kinds of orders are modifiable at any time on a showing of “changed circumstances.” You can learn more about how to modify custody and support orders here: [Guide to Modifying Custody/Support Orders.] Additionally, you can read more about the law governing custody here: [Guide to Custody.] You can read more about the law governing child support here: [Guide to Child Support.] You can read more about the law governing alimony (otherwise known as spousal support) here: [Guide to Alimony.]
All the requests above, except appeals and correction of clerical errors, are made by filing a motion. You can find out how to file a motion here: [Guide to Filing Motions.]
Under the Federal Court of Australia Act 1976 the Court can hear appeals from:
- judgments of a single Judge of the Federal Court whether interlocutory or final;
- judgments of a Supreme Court of a Territory other than the Australian Capital Territory or Northern Territory;
- certain judgments of courts (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory, exercising federal jurisdiction;
- certain judgments of the Federal Circuit and Family Court of Australia.
Who hears appeals?
Usually a Full Court of three or more Judges sitting together will hear an appeal. However, appeals from a judgment of a Judge of the Federal Circuit and Family Court of Australia or from a Court of summary jurisdiction will be heard by a single judge unless a judge considers that it is appropriate for the appeal to be heard by a Full Court.
What are the chances of success?
For an appeal to succeed a party must convince the Court that the Judge that heard the original case made an error of law and that the error was of such significance that the decision should be overturned. Some examples of significant errors of law are that the Judge that heard the original case:
- applied an incorrect principle of law; or
- made a finding of fact or facts on an important issue which could not be supported by the evidence.
The Court hearing the appeal:
- does not consider any new evidence or information that was not presented in the original case (except in special circumstances);
- does not call witnesses to give evidence;
- does read all the relevant documents filed by the parties for the original case;
- does read the relevant parts of the transcript of the original case, if available;
- does listen to legal argument from both parties to the appeal.
What if someone is appealing against a decision given in favour of another party?
If a person or corporation has been served with a Notice of Appeal that party will be known as the respondent in the appeal proceeding. The respondent then needs to notify the Court of their address for service by filing a Form 10 ( doc – 34 kb ).
If a respondent wants to appeal part of the judgment in the original case or to have part of the original judgment varied the respondent must fill out a Notice of Cross-Appeal using a Form 123 ( doc – 57 kb ).
Drafting a Notice of Appeal or Cross-Appeal is very difficult. It is therefore strongly recommended that a Notice of Appeal be prepared with legal assistance.
There are organisations which may be able to provide free or low-cost legal advice or assistance to a person who does not have a lawyer
Court staff cannot provide legal advice.
A party who loses an appeal will usually be ordered to pay each of the other party’s legal costs.
Where to get forms
Appeal forms are available from this website or from any Federal Court Registry.
Interpreters for hearings
If you need an interpreter to understand what is being said at a court hearing, you will need to arrange for any interpreter that you or your witnesses may require.
If you can not afford to pay for an interpreter, the registry may be able to arrange an interpreter for you. If you want the Court to arrange an interpreter you must contact the registry at least one week before the hearing. If you do not contact the registry within one week of the hearing, the Registry may not be able to arrange an interpreter in time and the hearing may be delayed.
You can also call 131 450 and speak to the registry through a telephone interpreter.
Interpreters to communicate with Registry
If you need an interpreter to communicate with Registry staff you can call 131 450 (the Translating & Interpreting Service) and speak to an interpreter. Ask them to set up a three-way conversation between you, an interpreter and your nearest Federal Court of Australia Registry. If you live in Western Australia, you may directly contact the Registry staff, who will arrange a telephone interpreter for you.
It is your responsibility to arrange and pay for the cost of a translator to translate documents sent to you by the Court or the respondent.
In a practical sense, the Ontario Court of Appeal is the last avenue of appeal for most litigants in Ontario (while appeal to the Supreme Court of Canada is possible, the Supreme Court only hears issues of public importance).
At Milosevic Fiske LLP, our experienced team of lawyers helps our clients in appeals before the Court of Appeal for Ontario. In addition to representing our clients in appeals before the Court of Appeal, we regularly act as amicus curiae, or friend of the Court, as part of our work with Pro Bono Ontario. Cameron Fiske has won a number of notable appeals for clients as part of his amicus work.
Appealing to the Court of Appeal
Decisions that can be appealed to the Court of Appeal include:
- An order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal;
- A final order of a judge of the Superior Court of Justice (unless the judgment does not exceed $50,000);
- A certificate of assessment of costs issued in a proceeding in the Court of Appeal.
Obtaining Leave to Appeal
Not all cases have an automatic right to appeal to the Court of Appeal. In some instances, the appellant (i.e. person seeking the appeal) must first obtain leave to appeal (i.e. permission of the court). This includes appeals from orders of the Divisional Court.
For matters that require leave to appeal, a notice of motion for leave to appeal must be served within 15 days of the date on the order being appealed and must be filed with the Court of Appeal within 5 days of service.
If leave to appeal is granted, a notice of appeal must then be served and filed within 7 days.
Starting an Appeal Where No Leave is Required
Appeals are initiated by serving and filing a copy of a notice of appeal and an appellant’s certificate respecting evidence.
Proof that both of these documents have been served on the respondent or respondents (i.e. the party responding to the appeal), must be filed with the Court of Appeal. Proof of service should come in the form of an affidavit of service which indicates when, where, and how the documents were served, or by an admission by the served party.
In general, the notice of appeal must be served on the respondent or respondents within 30 days of the date on the order appealed from.
The appellant then has 10 days from the day the respondent or respondents were served with the notice of appeal to file it with the Court of Appeal.
It may be possible to extend the timelines if the time to file an appeal has expired.
Perfecting the Appeal
Once the notice of appeal has been filed, the appellant must perfect the appeal.
This involves filing all documents necessary for the hearing of the appeal, along with proof of service of these documents.
Documents that must be filed include:
- An appeal book and compendium;
- An exhibit book;
- An appellant’s factum;
- The transcript of evidence (if required).
These documents must be served on the respondent or respondents before they are filed with the Court of Appeal, and proof of service must also be filed with the materials.
If no transcript of oral evidence is required, the appellant must perfect the appeal within 30 days after filing the notice of appeal. If a transcript of oral evidence is required, the appellant must perfect the appeal within 60 days after receiving notice that the transcript of evidence has been transcribed.
Once the relevant documents have been filed, the appellant must file a certificate of perfection in order to finalize perfecting the appeal.
After the Appeal is Perfected
Once to appeal is perfected, it will be placed on a list of all appeals that are ready for hearing, usually within 6 months of the date of perfection.
The appeal will be assigned a hearing date, depending upon the nature of the appeal involved.
Appeals are usually heard by one judge, but can be heard by panels of three or sometimes five judges.
Our Representative Cases
At Milosevic Fiske LLP, we believe we are among the best litigation teams in Toronto. We are a small office that has handled large matters for our clients, involving tens of millions of dollars in dispute, and the future of our clients’ businesses.
Some of our representative cases at the Court of Appeal include:
- Appeal in class action matter: View Appeal
- Appeal in contract dispute: View Appeal
- Appeal in a language rights matter: View Appeal
For Outstanding Representation in Appeals to the Ontario Court of Appeal Contact Milosevic Fiske LLP
The Toronto litigators at Milosevic Fiske LLP have unparalleled litigation experience. We will guide you through the process of appealing a decision to the Court of Appeal, and will represent you at trial. We are in court or in mediations almost every day and are skilled at thinking on our feet and rolling with the punches. Call us at 416-916-1387 or contact us online for a consultation.
The only way to remove a restraining order in California is to lodge an appeal with the district appellate court. It’s important to take action as soon as you receive the temporary restraining order since your chances of success are greater at this point than when the restraining order is made permanent. You may wish to have a lawyer file your appeal, though it isn’t mandatory.
Consult an Attorney
Before you appeal the restraining order, it’s important to understand what an appeal is, and what it is not. In all cases, the appeal court is only interested in two things: whether the trial judge made a mistake about the law, and whether this mistake affected the decision to place a restraining order on you. Keep in mind that an appeal doesn’t grant you a new trial. Instead, a higher court will review your case carefully to look for mistakes or inconsistencies on the part of legal counsel and the previous judge.
Turn in an Appeal
Turn in an appeal form with the appropriate appellate court by the legal deadline, which is usually 30 days after the court enters the judgment. There are six courts of appeal in California, one for each of the six judicial districts: San Francisco, Los Angeles, Sacramento, San Diego, Fresno and San Jose. You are the petitioner and the other person involved is the respondent. A panel of three judges will examine the transcripts and evidence in your case to determine whether or not the first trial was conducted properly, and whether you have legal grounds for an appeal.
Have a Legal Reason
State your reasons for appealing the restraining order. It’s up to you to prove that either a law was not upheld during your trial, evidence was not sufficiently examined or the court made an error of law or fact. No new evidence or testimony will be admitted. Do not contact the protected person during this process. The findings and orders from the trial still stand unless the appellate court finds grounds for dismissing the restraining order.
An appeal against a possession order normally has to be made within 21 days of the date the order was made. An appeal can normally be brought only on a point of law. The rules governing appeals are set out in Civil Procedure Rule (CPR) 52. There is usually a court fee to pay and costs involved in obtaining the supporting documents required such as the transcript of the hearing.
Grounds of appeal
Permission to appeal may only be granted when the appellant can demonstrate they have a reasonable prospect of success, or if there is some other good reason to grant permission.[ 1 ] The court can allow an appeal if the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity.[ 2 ]
Most successful appeals are brought on a point of law. For example, the judge could have made a wrong decision because they did not correctly apply relevant legislation or the binding decision of a superior court.
Appeal against discretion
It is sometimes possible to appeal against a judge’s exercise of discretion, but only if the judge has taken account of an irrelevant fact or not taken account of a relevant one.[ 3 ] The court is generally reluctant to overturn a decision made in the exercise of discretion unless it is wholly wrong, even if the appeal court would have made a different decision on the same evidence.[ 4 ]
Which court will hear the appeal
Most possession orders are made in the County Court by a district judge. An appeal is made to the circuit judge (also at County Court level, though a circuit judge may cover a number of different County Courts).
An appeal against the decision of a circuit judge is to be made to the Court of Appeal in a case tried on the multi-track or to the High Court in a case tried on the fast track.
Applying for permission to appeal
Permission to appeal can be sought from the judge at the possession hearing, or if this is refused, by an application to the court which would hear any appeal. Alternatively, an application for permission can be made directly to the appeal court.
The first step is to complete Form N161, which is an application for permission to appeal. There are detailed guidance notes accompanying the form to assist in its completion. It details the options available and lists the supporting documents required.
The person appealing must provide all the supporting documents, including a copy of the possession order appealed against and an approved transcript of the relevant court hearing. The transcript can sometimes be obtained at public expense. The court is entitled to refuse to provide it at public expenses where it considers that the appeal has not a good prospect of success.[ 5 ]
There is no right of appeal against a decision of an appellate court to give or refuse permission to appeal and the only remedy available in such cases is to apply for judicial review where exceptional circumstances warrant such application.[ 6 ]
There is no automatic right to introduce new points on appeal. The appellate court will not admit new evidence, unless it exercises its discretion to do so[ 7 ] and the decision would depend on the analysis of relevant factors, such as whether the original decision was made at a trial or at a short summary hearing, the nature of the new point and whether the opposing party would suffer prejudice as a result.[ 8 ]
In deciding whether to allow fresh evidence to be introduced, the court can apply the three stage test set down by the Court of Appeal:[ 9 ]
the evidence could not have been discovered with reasonable diligence in time for the hearing or trial
if available, the evidence would have had an important influence on the case
the evidence must be credible
The Court of Appeal applied this test in a case where a mistake of the court led to an appeal being dismissed as out of time.[ 10 ]
If the appeal is successful the court can set the order aside or, where possession was made on a discretionary ground, vary the order.
Reopening of final appeals
In some exceptional cases, for example when the original possession order was made without the county court considering the Article 8 rights of the occupier despite such a defence having been raised during the possession proceedings (see Public law and human rights defences for more on Article 8), it may be possible to apply to reopen an appeal to the Court of Appeal or the High Court, but only if all the following conditions are satisfied:[ 11 ]
it is necessary to do so in order to avoid real injustice
the circumstances are exceptional and make it appropriate to reopen the appeal, and