In 2004, the firm won an emergent appeal summarily reversing the entry of a Final Restraining Order prohibiting a father from having any contact with his ex-wife and 17 year old son. In that case, the parties had been divorced for 8 years, and shared joint physical custody of their 17 year old son under a 50/50 parenting arrangement. After the son had been performing poorly in school, the father went to his ex-wife’s residence and left a note in her bedroom stapled to the child’s school records indicating that they needed to talk about their son’s scholastic problems. The mother, who was not home at the time the father left the note, charged the husband with trespass, and obtained a temporary domestic violence restraining order prohibiting him from having any contact with her or their son. The father elected to represent himself at the final restraining order hearing. During the trial, the mother did not testify, call any witnesses or produce the note as evidence. The father was not given an opportunity to fully testify, and was only permitted to answer the Judge’s questions. After questioning the father, the Judge entered a Final Restraining Order prohibiting him from having any contact with his ex-wife or the parties’ son. The ex-wife then filed a motion to increase child support based upon the fact that she now had full custody of the parties’ son.
After retaining the firm, Brian G. Paul, Esq. filed an emergent appeal on the father’s behalf arguing that the trial court had unlawfully violated the father’s constitutional right to custody of his son without due process of law. The granting of an emergent appeal is extraordinary relief that is rarely awarded except in situations where a party successfully demonstrates that they may be irreparably harmed. Normally, the appellate process takes over a year to complete, whereas an emergent appeal may be decided in as little as a few days. Brian argued that the Trial Court violated the father’s due process rights by not providing the father an opportunity to cross-examine his accuser, testify in detail or call any witnesses. He further argued that the restricting of the father’s right to see his son constituted irreparable harm, because the potentially irreversibly damage could not be satisfied with monetary damages. The Appellate Division agreed with Brian’s arguments, and summarily reversed the Final Restraining Order with instructions that a new trial be conducted immediately. After the alleged victim testified at the new trial, the Trial Court granted Brian’s motion to dismiss the complaint, agreeing that the ex-wife had failed to demonstrate that the father had committed an act of domestic violence warranting the entry of a final restraining order.
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