Posted by Joseph J. Russell, Jr., Esq.
An appeal is a proceeding that allows a higher Court to review a lower court’s decision. The most common grounds for taking an appeal from a decision by the Family Part are as follows: (1) the court failed to make adequate findings of fact; (2) the court failed to follow the law (controlling statute, case law, or court rules); (3) the court failed to conduct a plenary hearing to resolve material issues in dispute; and (4) the court abused its discretion.
It is important to note that appeals are time consuming and costly as they generally involve an extensive amount of preparation, research, writing, analysis of the transcript of the proceedings below, settlement conferences, oral argument (on request), filing fees, transcript costs, and occasional motion practice. The average time for disposition of an appeal exceeds one year. Factors that may affect the disposition of an appeal include delays in obtaining the transcripts, failure to meet filing deadlines, and the complexity of the issues presented. Family Part appeals are administratively screened and, if deemed appropriate, placed on an accelerated schedule. The appeals that qualify for an accelerated schedule of disposition generally include issues such as the termination of parental rights, child abuse, adoption, legal guardianship, and issues pertaining to custody.
Appeals can only be taken from a final order or judgment. An order or judgment is only final where it disposes of all issues as to all parties. If an order is not “final”, a party must file a motion requesting leave to appeal from the interlocutory order and only a small percentage of interlocutory appeals are granted. The filing of a motion for leave to appeal, however, does not automatically stay the order or proceedings in the trial court. Rather, a motion must be filed to stay an appeal.
An emergent application may be filed in the Appellate Division where irreparable damage would result if the party were to proceed with the timetable of a regular appeal or motion. Interim relief sought on an emergent application may include, for example, a stay of an order below to preserve the “status quo” pending appeal; to compel affirmative relief pending appeal or on a permanent basis; and clarification or reversal of an evidentiary ruling made by the trial court. An applicant seeking emergent relief must establish (1) that the issue is truly emergent and cannot proceed as a regular appeal or motion; and (2) a reasonable likelihood of success on the merits.
The Wilentz Firm has an Appellate Practice Group that consists of experienced appellate advocates and retired judges from the Superior Court, the Appellate Division, and the New Jersey Supreme Court. Moreover, our Family Law team has attorneys who clerked in both the Appellate Division and New Jersey Supreme Court. Our attorneys and former judges are well versed in all facets of the appellate process — determining the likelihood of success on appeal, deciding whether and when to present an emergent application, leave to appeal, how to structure appellate briefs, and the presentation of effective oral argument before appellate courts.
Additional information regarding appeals can be found on the New Jersey Judiciary’s website at http://www.judiciary.state.nj.us, including, but not limited to, appellate forms; New Jersey Standards for Appellate Review; the procedure for filing emergent applications and regular appeals in the appellate division; and Appellate Division calendars.