Justice David Saxe (NYLJ/Rick Kopstein)
Not long ago I published an article entitled “Fast-Tracking Commercial Appeals at the First Department” (NYLJ, April 8, 2014), triggered by some important proposed rule changes in the Commercial Division of the Supreme Court, New York County. I am now convinced that there is a greater need for the Appellate Division, First Department to fast-track family law appeals, both from the Family Court and the Supreme Court.
Almost all of us at the First Department have had firsthand experience with this issue. For example, when serving my rotation as an interim stay duty judge, in matters involving children such as custody and visitation, relocation and parental termination cases, I have been struck by how frequently applications are made for an immediate stay of the determination as soon as it is issued by the Family Court or by one of the dedicated matrimonial parts, even though issuance of a stay would normally require a review of the entire record, the way we would on a full appeal. Sometimes, the duty judge is provided with the transcribed trial minutes along with voluminous forensic expert evaluations and reports, in support of an immediate interim stay; other times, only some of the evidentiary materials are available for presentation in support of a stay.
In view of the trial courts’ completion of lengthy hearings, their consideration of extensive documentary evidence including expert reports and their typically thorough and thoughtful decisions, a stay of a determination affecting the life of a child is singularly unlikely. We do not normally upset these decisions absent a powerful showing of serious error or harm. Obviously, a single justice presented with an interim stay application cannot possibly review all the materials, even assuming they are available, within the working day.
When a motion for a stay pending appeal is from a Family Court order, it may be orally argued before, and decided by, a single justice, without any further review by a full bench, although sometimes these motions are handled as one for interim relief only, and referred to a full bench. In contrast, a motion for a stay pending appeal from a final judgment of custody or visitation by a matrimonial part, although an interim stay may initially be sought, will always go on to be heard by a full five-justice bench.
These full-bench motions are submitted on paper, without oral argument, and the submissions are reviewed by a member of our Law Department before being turned over to the reporting justice, along with a report provided to each member of the bench, summarizing the facts, issues and contentions. The rest of the bench will only see the underlying submissions if they specifically request to review them.
Whether it comes up as a single judge motion or a fully briefed motion for a stay pending appeal presented to a full five-justice motion bench, in most instances the justice or justices hearing the application will have a difficult time digesting the full record in the limited time available for deciding a motion in a timely manner. Rather, it is only once the appeal is fully submitted that we are able to give the necessary degree of consideration to whether the determination should be upheld or overturned.
Yet, the standard procedure for perfecting and submitting appeals entails many long months of delay between the potentially life-altering decision of the trial court, and our review of that decision. By the time we issue our decision, often things have changed dramatically for the child. Sometimes, such long delays may cause the decision to be of little value in the life of the child; by that time, new circumstances may necessitate a whole new evaluation.
The question is, can we fast-track Family Law appeals in a manner that allows for these matters to be fully reviewed by a full panel as quickly as possible. At the very least, these situations cry out for the adoption of shortened time frames and different procedures.
It is tempting to suggest a procedure by which we review the trial record, analogous to the Court of Appeals’ accelerated procedure under Rule 500.11, by which that court makes its review solely on the briefs and record that was before the Appellate Division, with the only permitted addition being letter submissions by the parties.
However, since the Appellate Division is the only court to which the parties have a right to appeal, any procedure we adopt should carefully protect the right of each party to review the record and fully present his or her arguments regarding the challenged determination.
There already exists a statutory framework for obtaining a preference. Preferences for appeals are addressed generally in CPLR 5521, but the rule makes no special provision for the large majority of child-related family law matters. Subdivision (a) provides that “preferences in the hearing of an appeal may be granted in the discretion of the court to which the appeal is taken,” and subdivision (b) explicitly gives such a preference, without the necessity of a motion, for appeals in certain specified types of Family Court proceedings, including terminations of parental rights and child protective proceedings; but there is no automatic preference for appeals in child custody matters.
For those types of appeals, an application for a preference may be made under CPLR 5521(a), and the rules of the First Department allow for such applications to be made upon good cause shown on notice to the other party
In addition, the Family Court Act directs an expedited appeal in circumstances where the Appellate Division has granted a stay pending appeal.
Yet, these statutory provisions do not cover the majority of the appeals that come before us involving the lives of children. Moreover, the nature of typical delays in these matters is not chiefly related to the court’s calendaring of the appeal; more often, there are delays in obtaining the transcribed minutes of court hearings and trials, as well as delays in the preparation and submission of briefs.
To combat this problem with extensive delays, over a decade ago the Second Department instituted procedural changes geared solely at speeding up appeals in child-related matters, including Family Court orders, Supreme Court orders relating to custody and visitation, and Surrogate’s Court decrees regarding adoption.
Spearheaded by then-Presiding Justice A. Gail Prudenti, the court added to its rules a new provision establishing what it called the Active Management Program. Rule 670.4 was amended to add a procedure by which case managers would oversee a tight schedule for obtaining transcripts and scheduling the submission of briefs.
The court took other steps as well, such as giving case managers authority to enforce scheduling orders, creating lines of communication and establishing training programs. Prudenti wrote in a Law Journal article in 2010 that the efforts to streamline and speed the processing of family law appeals has been successful.
It seems not only reasonable, but compelling, to suggest that the First Department should undertake a similar addition to our rules and procedures. While the speediest possible procedure for appellate review, namely, a review based solely on the trial court record, frequently may not be a viable option, since it could interfere with the litigants’ basic rights to fully present their arguments on appeal, we could adopt a rule comparable to the Court of Appeals’ Rule 500.11, to be employed when the parties agree to the expedited procedure allowing for review without formal briefing.
Even using our standard appellate procedures allowing counsel time to obtain and review the record and prepare formal appellate briefs, we could substantially speed up appellate review of family matters by adopting something like the Second Department’s Active Management Program, providing a procedure for oversight to ensure that minutes are quickly transcribed and briefs are served and filed with expedition. We could then calendar these matters as we do cases to which a statutory preference has been awarded, and decide them with special expedition.
Perhaps some of these delays may eventually become obsolete, by the electronic or digital preparation and filing of the entire record, so that the appellate court has virtually immediate access to the information that was before the trial court. If all that the parties need to provide is their briefs, the process of perfecting the appeal need not be as time-consuming as a standard civil appeal; these family law appeals generally focus more on the sharply disputed factual presentations, and need less emphasis on points of law, which are typically concepts with which we are already very familiar.
While there is room to debate what steps we should take to sharply reduce the delays of family law appeals, we should certainly consider our alternatives and undertake appropriate changes. There is no time like the present.