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Appealing A Custody Decision/Order In New York State

Oftentimes, one parent is unhappy with the trial court’s custody decision after trial. Sometimes that parent is simply dissatisfied but lacks a legal basis to appeal; other times, that parent has a justifiable legal argument that requires appellate court intervention.

All custody decisions must be supported by a sound and substantial basis in the record. For example, if a court awards sole custody to a mother with one day per month visitation to the father, the court must have had a significant reason for having done so; the court must have relied on substantial evidence to have decided this way. This reasoning should be spelled out in the court’s decision after trial.

On occasion, the appellate court finds that the trial record (i.e. the testimony transcripts, the evidence presented at trial, etc.) does not support the court’s award of custody. The court might believe that there was not enough evidence against the father to limit his visitation to just one day per month, or to limit his visits to daytime visits only. In this scenario, the appellate court has the power to overturn the decision or remand it back to the trial court for a new or additional analysis or decision consistent with the appellate court’s instruction.

Another basis for an appeal is that the trial judge did not properly apply the law. Judges are humans, too – they can make mistakes. For example, the judge may have misunderstood a statute or case law and as a result, may have rendered a decision inconsistent with controlling legal authority. A litigant has the opportunity to appeal to the appellate court requesting that the appellate court review the case and decision to ensure that the trial judge applied the law correctly.

The right to appeal is an important and powerful right. However, there are time limits and deadlines that must be followed. If you are unsatisfied with your custody or visitation decision, it is extremely important to contact a lawyer immediately so you don’t miss your chance at an appeal.




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