Helping Clients With Divorce
& Family Law for More Than 25 Years.
A Firm Focused on Divorce and Family Law.
& Family Law for More Than 25 Years.
A Firm Focused on Divorce and Family Law.
Family Law Appeals
In reviewing the order appealed from, the Appellate Division looks at whether the decision is supported by the facts and the law. Family Court Orders receive a certain level of deference by the appellate courts as to fact because of the court’s perceived expertise in family law matters. The trial judge sees all of the witnesses testify and is usually best able to determine the witness’s demeanor, tone, emotions, attitude and credibility. The Appellate Division sees none of that. Its decisions are based on papers and sometimes oral argument of the attorneys involved.
This does not mean that the appellate division cannot or will not disturb the lower court’s decisions and determination on the facts, just that its doing so is less common than leaving that part of the Family Court decision alone. This deference to Family Court would be on issues such as finding a witness and their testimony credible or not credible, or perhaps whether the witness was sincere in their testimony.
Where issues involved in the appeal are questions of law, the Appellate Division always reviews it, without deference to any lower court. Some examples of questions of law would be whether the right law was applied to the facts, whether the law applied to the facts was applied properly or whether the law was misinterpreted in applying it to the facts.
When the evidence presented at trial is found to be “adequate, substantial and credible” in support of the decision, the Appellate Division will not change the trial court’s decision. This means that the law and principles of law must be correctly applied to the evidence presented and there is enough believable evidence to support the decision made by the trial court. Failure of these standards will result in the Appellate Division overturning the decision, modifying it or sending it back to the lower court with instructions to make a new decision based on the higher court’s decision on the appeal.
FAQ: What is the overall appellate process in New Jersey?
As mentioned elsewhere in this article, the New Jersey appellate process begins with the filing of the Notice of Appeal (in a timely manner). What is known as a Case Information Statement is filed in conjunction with a Notice of Appeal. In addition, the transcript of the proceedings in the lower court or divorce court are ordered for delivery to the Appellate Division.
When these preliminary matters are completed, the parties to the appeal will be provided with an opportunity to prepare and present Briefs to the Appellate Division. The Briefs contain the arguments of the parties in regard to their positions on appeal.
The Appellate Division may schedule oral argument before the judges if a determination is made that this type of presentation would assist in deciding the case. Ultimately, a panel of two or three judges will make a decision regarding the appeal. A party dissatisfied with that decision can try and lodge a further appeal with the New Jersey Supreme Court. However, the Supreme Court only rather sparingly accepts cases for further proceedings.
I recommend you read our related article titled “The Procedure for Filing an Appeal of a New Jersey Family Court Order” which is located on this website. Said article discusses the time periods for taking an appeal and some of the procedures for the same.
Peter Van Aulen has been practicing divorce and family law for over 22 years. His practice focuses on family and divorce law. He is a former adjunct professor. Mr. Van Aulen is certified by the New Jersey Supreme Court as a Matrimonial Attorney. Peter Van Aulen has successfully handled a number of appeals. Some of his Appellate Court decisions have been published. He enjoys researching, writing and arguing appeals. His main office is located in Saddle Brook New Jersey. If you need to discuss the appeal of your Family Court Order, contact the Law Offices of Peter Van Aulen for a free initial consultation at 201-845-7400.
FAQ: Are there New Jersey attorneys that specialize in appeals?
In a word: Yes. There are lawyers in New Jersey who focus their professional work on what commonly is called “appellate practice.” Indeed, there are “appellate attorneys” that narrow their practices even further. For example, there are appellate lawyers the focus on family law, criminal, or personal injury appeals.
FAQ: Can an appeal in a family law case be filed more than one time?
Whether or not a subsequent appeal can be filed after pursuing an initial one can be a complicated question. Generally speaking, when you file an appeal in a particular case or proceeding, you must raise all relevant issues within the scope of that appeal. With that said, if there are subsequence divorce or family law related proceedings, there possible can be grounds to pursue a subsequent appeal following a later decision of the court.
FAQ: If I lose my appeal in the New Jersey Court of Appeals, can I appeal my case to the New Jersey Supreme Court?
You can but that does not mean the New Jersey Supreme Court will consider your case. Whether you can appeal your divorce or other family law case to the New Jersey Supreme Court comes down to whether or not that court will agree to hear your case.