Right to Appeal

New York County Family Court

Missing Safeguard: Right to Appeal Family Orders

There is no standard that New York Appeal Courts have articulated when dismissing or granting a motion for permission to appeal interim or temporary orders. The dismissal or granting of an appeal of an interim or temporary order appears to be at the sole discretion of the court. The statute that prevents appeals of family court orders before the case is disposed of is New York Family Court Act § 1112.

RESEARCH FINDINGS

“Section 1112 of the Family Court Act provides that an appeal may be taken as of right from an order of disposition, and, in the discretion of the appropriate Appellate Division, from any other order under the Family Court Act.” Firestone v Firestone, 44 AD2d 671, 672 (1st Dept 1974). “An ‘order of disposition’ is synonymous with a final order or judgment.” Id. “[N]o appeal lies as of right from a nondispositional order of the Family Court and leave has not been granted.” Barton v Barton, 13 AD3d 366, 366 (2d Dept 2004). New York Family Court Act § 1112 states:

  1. 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. An appeal from an intermediate or final order in a case involving abuse or neglect may be taken as of right to the appellate division of the Supreme Court. Pending the determination of such appeal, such order shall be stayed where the effect of such order would be to discharge the child, if the family court or the court before which such appeal is pending finds that such a stay is necessary to avoid imminent risk to the child’s life or health. A preference in accordance with rule five thousand five hundred twenty-one of the civil practice law and rules shall be afforded, without the necessity of a motion, for appeals under article three; parts one and two of article six; articles seven, ten, and ten-A of this act; and sections three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four, and three hundred eighty-four-b of the social services law.

N.Y. Fam. Ct. Act § 1112(a) (McKinney).

“To the extent that section 1112 of the Family Court Act requires finality as a prerequisite to appealability as of right, and necessitates permission granted by the appellate division in the exercise of its discretion for appeals from all other orders.” Ocasio v Ocasio, 49 AD2d 801, 801 (4th Dept 1975). “Likewise, if the order grants temporary support, a temporary order of protection, and discovery, it is still not appealable as of right.” Id. (see Firestone v. Firestone, 44 A.D.2d 671, 354 N.Y.S.2d 645 (1st Dep’t 1974)). “Where the ancillary issues in a matrimonial action have been referred to family court, interim orders made by the family court, pending a hearing before it, are nondispositional and not appealable as of right.” Id. (see Harley v. Harley, 129 A.D.2d 843, 513 N.Y.S.2d 857 (3d Dep’t 1987)).

In In re John S., 26 AD3d 870 [4th Dept 2006], [t]he appeal from the temporary order entered December 3, 2004 directing removal of the subject children is dismissed because that order was superseded by an order of disposition entered April 25, 2005.” The court here observed that “[i]nasmuch as a [further] order of disposition has been entered, any appeal from the temporary order of removal is moot.” Id.

In Ciotti v Butera, 24 AD2d 983 (2d Dept 1965) also the court noted that “[u]pon the entry of the final order, the prior temporary order terminated and it is not . . . in effect. Hence, the . . . appeal is moot. In any event, an appeal does not lie as of right from a temporary order of support.” Id.

When an order is not appealable as of right, the appeals court may use its discretion and treat the appeal as an application for leave to appeal, and grant the application nunc pro tunc. Jeremy A. v. Vianca G., 120 A.D.3d 1147, 1147, 993 N.Y.S.2d 29, 30 (2014). (see Family Ct. Act § 1112(a); Matter of Holtzman v. Holtzman, 47 A.D.2d 620, 620–621, 364 N.Y.S.2d 528 (1st Dept.1975); Matter of Brett M.D. v. Elizabeth A.D., 110 A.D.3d 424, 972 N.Y.S.2d 36 (1st Dept.2013)). “An order of the family court which is not appealable as of right (i.e., is not an order of disposition, is not made in an abuse or neglect case, or is not one which the presentment agency may appeal in a juvenile delinquency matter) is appealable only by permission of the appellate division.” 10C West’s McKinney’s Forms Matrimonial and Family Law § 32:4 (see FCA § 1112(a)). “Such permission is generally sought in advance by a motion for permission to appeal, made within the statutory time to notice an appeal.” Id. “There are, however, numerous instances in which parties have noticed appeals as of right and brought such appeals to argument and the appellate division has elected to treat the papers, and the notice of appeal, as an application for leave to appeal, granted leave, and resolved the appeal on its merits.” Id. (See, e.g., Consford v. Consford, 271 A.D.2d 106, 711 N.Y.S.2d 199 (3d Dep’t 2000); Marcella S. v. Karl T., 225 A.D.2d 557, 639 N.Y.S.2d 86 (2d Dep’t 1996); Karen B. v. Julio Frederic C., 217 A.D.2d 658, 629 N.Y.S.2d 485 (2d Dep’t 1995); C.S.S. on Behalf of Dawn Marie O. v. Klaus D., 188 A.D.2d 381, 591 N.Y.S.2d 388 (1st Dep’t 1992); Louise S. v. Timothy E., 187 A.D.2d 994, 591 N.Y.S.2d 642 (4th Dep’t 1992). “However, the courts have not always exercised their discretion to proceed in that fashion and have dismissed appeals improperly taken as of right.” Id. (See, e.g., Cheryl A.B. v. Michael Anthony D., 197 A.D.2d 851, 602 N.Y.S.2d 465 (4th Dep’t 1993); Harley v. Harley, 129 A.D.2d 843, 513 N.Y.S.2d 857 (3d Dep’t 1987); Schultz v. Schultz, 117 A.D.2d 737, 498 N.Y.S.2d 463 (2d Dep’t 1986)).

CONCLUSION

There is no standard that New York Appeal Courts have articulated when dismissing or granting a motion for permission to appeal interim or temporary orders.

The dismissal or granting of an appeal of an interim or temporary order appears to be at the sole discretion of the court. The statute that prevents appeals of family court orders before the case is disposed of is Section 1112 of the Family Court Act.