Although not an issue directly raised on appeal, the attorney for the child and the father both requested that Family Court hold a Lincoln hearing ( see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969] ) rather than require the child to testify in open court. Unfortunately, this request was denied and, after the mother refused to consent to the child testifying outside of the parties' presence, the child had to testify under oath in front of both parents. While we recognize that Family Court has the discretion to decide whether a Lincoln hearing is appropriate ( see Matter of McGovern v. McGovern, 58 A.D.3d 911, 913 n. 2, 870 N.Y.S.2d 618 [2009];Matter of Farnham v. Farnham, 252 A.D.2d 675, 677, 675 N.Y.S.2d 244 [1998] ), it was clearly an abuse of discretion for the court to put the child in this awkward position, notwithstanding that her wishes were already known to her parents, particularly considering the testimony that the mother attempted to influence the testimony of her children. We again emphasize that “ ‘a child ... should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them’ ” when explaining the reasons for his or her preference (Matter of McGovern v. McGovern, 58 A.D.3d at 913 n. 2, 870 N.Y.S.2d 618, quoting Matter of Lincoln v. Lincoln, 24 N.Y.2d at 272, 299 N.Y.S.2d 842, 247 N.E.2d 659). Given the circumstances of this case and the fact that—at her age—her preference would be entitled to great weight, the record indicates that a Lincoln hearing would have limited the
The mother now appeals. Initially, we agree with the mother and the attorney for the child that circumstances have substantially changed since the entry of the prior custody order, necessitating a best interests analysis ( see e.g. Matter of McGovern v. McGovern, 58 A.D.3d 911, 913–914, 870 N.Y.S.2d 618 [2009] ). Nevertheless, our independent review of the record convinces us that the child's best interests are served by the present custody arrangement and, thus, we affirm ( see Matter of Knight v. Knight, 92 A.D.3d 1090, 1091–1092, 940 N.Y.S.2d 325 [2012]; cf. Matter of McGovern v. McGovern, 58 A.D.3d at 915, 870 N.Y.S.2d 618). In assessing a child's best interests, “an existing arrangement borne of the parties' mutual agreement is a factor to be considered, along with the quality of the respective home environments, the child's wishes, the length of time the present custody arrangement has been in place and each parent's past performance, relative competence and capacity to provide for and direct the child's development” ( Matter of De Hamel v. Porto, 22 A.D.3d 893, 894, 802 N.Y.S.2d 286 [2005] [internal citation omitted]; accord Matter of Prefario v. Gladhill, 90 A.D.3d 1351, 1353–1354, 935 N.Y.S.2d 671 [2011] ).
Typically, the change in circumstances analysis looks only as far back as the last custody order, which in this case was entered in May 2007. However, considering the enduring pattern of behavior between the parties and the children's interest in a final resolution to the situation, to the extent that Family Court considered events preceding May 2007, the court did not abuse its discretion ( see Matter of McGovern v McGovern, 58 AD3d 911, 913 [2009]). Having determined that a sufficient change in circumstances had occurred, Family Court was required to consider the children's best interests in crafting a new arrangement ( see Matter of Langley v Spano, 58 AD3d at 1083; Matter of Goldsmith v Goldsmith, 50 AD3d 1190, 1191).
Battin v. Battin, 130 A.D.3d 1265, 1266, 12 N.Y.S.3d 672 [2015] [internal quotation marks, brackets, ellipsis and citations omitted]; see Matter of Gonzalez v. Hunter, 137 A.D.3d 1339, 1342–1343, 26 N.Y.S.3d 625 [2016] ). Those concerns are valid regardless of the child's age, and requiring the child here to publicly testify could easily have caused him to be less than candid regarding the reasons why court-ordered visitation has not occurred (see Matter of Battin v. Battin, 130 A.D.3d at 1266, 12 N.Y.S.3d 672 ; Matter of McGovern v. McGovern, 58 A.D.3d 911, 913 n. 2, 870 N.Y.S.2d 618 [2009] ).
ticle 6 because “[a] child who is explaining the reasons for his or her preference ... ‘should not be placed in the position of having his or her relationship with either parent further jeopardized by having to publicly relate his or her difficulties with them or be required to openly choose between them’ ” (Matter of Julie E. v. David E., 124 A.D.3d 934, 937, 1 N.Y.S.3d 431 [2015], quoting Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969] [brackets omitted]; compare Matter of Justin CC. [Tina CC.], 77 A.D.3d 207, 209–212, 903 N.Y.S.2d 806 [2010] ). These considerations apply with equal force to children of all ages; indeed, it may be particularly important to ensure that older children have the opportunity to express their views in confidence, as their preferences are given great weight in custody proceedings (see Matter of Casarotti v. Casarotti, 107 A.D.3d 1336, 1339, 967 N.Y.S.2d 783 [2013], lv. denied 22 N.Y.3d 852, 2013 WL 5614329 [2013] ; Matter of McGovern v. McGovern, 58 A.D.3d 911, 913 n. 2, 870 N.Y.S.2d 618 [2009] ).However, a review of the record here reveals that the mother directly opposed the request for such a hearing; when the father and the attorney for the child requested that Family Court conduct a confidential Lincoln interview with the child, the mother's counsel objected, stating that the mother would not consent, and—directly contradicting her appellate arguments—asserting that the younger son was old enough to testify in open court.
ticle 6 because “[a] child who is explaining the reasons for his or her preference ... ‘should not be placed in the position of having his or her relationship with either parent further jeopardized by having to publicly relate his or her difficulties with them or be required to openly choose between them’ ” ( Matter of Julie E. v. David E., 124 A.D.3d 934, 937, 1 N.Y.S.3d 431 [2015], quoting Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969] [brackets omitted]; compare Matter of Justin CC. [Tina CC.], 77 A.D.3d 207, 209–212, 903 N.Y.S.2d 806 [2010] ). These considerations apply with equal force to children of all ages; indeed, it may be particularly important to ensure that older children have the opportunity to express their views in confidence, as their preferences are given great weight in custody proceedings ( see Matter of Casarotti v. Casarotti, 107 A.D.3d 1336, 1339, 967 N.Y.S.2d 783 [2013], lv. denied22 N.Y.3d 852, 2013 WL 5614329 [2013]; Matter of McGovern v. McGovern, 58 A.D.3d 911, 913 n. 2, 870 N.Y.S.2d 618 [2009] ). However, a review of the record here reveals that the mother directly opposed the request for such a hearing; when the father and the attorney for the child requested that Family Court conduct a confidential Lincoln interview with the child, the mother's counsel objected, stating that the mother would not consent, and—directly contradicting her appellate arguments—asserting that the younger son was old enough to testify in open court.
Having voiced no opposition to this procedure, the mother cannot now be heard to complain ( cf. Matter of Lopez v. Robinson, 25 A.D.3d 1034, 1037, 808 N.Y.S.2d 494 [2006] ). Moreover, given the underlying circumstances, we cannot say that Family Court abused its sound discretion in concluding that the child's interests would best be served by testifying in camera ( see generally Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969];Matter of DeRuzzio v. Ruggles, 88 A.D.3d 1091, 1091–1092, 931 N.Y.S.2d 271 [2011];Matter of McGovern v. McGovern, 58 A.D.3d 911, 913 n. 2, 870 N.Y.S.2d 618 [2009] ). The mother's remaining contentions, including her assertion that the father failed to demonstrate a sufficient change in circumstances to warrant modification of the prior visitation arrangement to ensure the continued best interests of the child, have been examined and found to be lacking in merit.
In doing so, we will not consider the mother's August 2010 arrest and subsequent conviction for driving while intoxicated or an October 2010 argument between the allegedly intoxicated mother and her oldest son that resulted in police involvement ( see Matter of Opalka v. Skinner, 81 A.D.3d 1005, 1005, 916 N.Y.S.2d 271 [2011]; Matter of Risman v. Linke, 235 A.D.2d 861, 861–862, 652 N.Y.S.2d 832 [1997] ). Nevertheless, upon our review of the entire record, “we find ample evidence of a change in circumstances necessitating reconsideration of the [child's] best interests” ( Matter of McGovern v. McGovern, 58 A.D.3d 911, 914, 870 N.Y.S.2d 618 [2009] ).
The weight to be given to a child's preference in a custody determination becomes greater as the child ages ( see Matter of Passero v Giordano, 53 AD3d 802, 804). Here, the older child was nearly 11 years old at the time of the Lincoln hearing — an age at which his wishes were not necessarily entitled to the "great weight" we accord to the preferences of older adolescents ( Matter of McGovern v McGovern, 58 AD3d 911, 913 n 2 [2009]; see Matter of Cornell v Cornell, 8 AD3d at 719; Matter of Oddy v Oddy, 296 AD2d at 617). However, based on the older child's level of maturity and ability to articulate his preferences as reflected in the Lincoln hearing transcript, we are persuaded that the unequivocal position he expressed at that time was, at minimum, "entitled to consideration" ( Matter of Lowe v O'Brien, 81 AD3d 1093, 1096; compare Matter of Winston v Gates, 64 AD3d 815, 818).
. This is particularly true where it is possible that one or more children may be questioned by the Court, whether in camera or otherwise. See McGovern v. McGovern, 58 A.D.3d 911, 915, 870 N.Y.S.2d 618, 622 (2009) (“While not determinative, the wishes of an almost 14-year-old child are certainly entitled to great weight.”).