Opinion
1269 CAF 18–00624
01-31-2020
In the Matter of Juan Lorenzo MURIEL, Petitioner–Respondent, v. Meghan O'Neill MURIEL, Respondent–Petitioner–Appellant.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent-petitioner mother appeals from an order that modified a prior custody and visitation order by, inter alia, awarding sole legal and primary physical custody of the subject children to petitioner-respondent father, with supervised visitation to the mother. We conclude that the mother waived her contention that the father failed to establish the requisite change in circumstances warranting an inquiry into the best interests of the children inasmuch as she alleged in her cross petition that there had been such a change in circumstances (see Matter of Biernbaum v. Burdick, 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 (4th Dept. 2018) ). In any event, we reject that contention because the record establishes that the mother engaged in conduct designed to alienate the children from the father (see Matter of Williams v. Rolf, 144 A.D.3d 1409, 1411, 42 N.Y.S.3d 381 (3d Dept. 2016) ; Matter of Fox v. Fox, 93 A.D.3d 1224, 1225, 940 N.Y.S.2d 719 (4th Dept. 2012) ).
Contrary to the mother's further contention, Family Court did not abuse its discretion in awarding the father sole legal and primary physical custody of the children. "Generally, a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Matter of Krug v. Krug, 55 A.D.3d 1373, 1374, 865 N.Y.S.2d 450 (4th Dept. 2008) [internal quotation marks omitted]; see Matter of Dubuque v. Bremiller, 79 A.D.3d 1743, 1744, 913 N.Y.S.2d 855 (4th Dept. 2010) ). Here, we see "no basis to disturb the court's determination inasmuch as it was based on the court's credibility assessments of the witnesses and ‘is supported by a sound and substantial basis in the record’ " ( Krug, 55 A.D.3d at 1374, 865 N.Y.S.2d 450 ; see Dubuque, 79 A.D.3d at 1744, 913 N.Y.S.2d 855 ).
The mother's contention that the Attorney for the Children (AFC) was ineffective for advocating a position that was contrary to the children's wishes is not preserved for our review because the mother failed to make a motion seeking the AFC's removal (see Matter of Mason v. Mason, 103 A.D.3d 1207, 1208, 959 N.Y.S.2d 577 (4th Dept. 2013) ). In any event, the mother's contention lacks merit. In general, an attorney for the child "must zealously advocate the child's position ... and, if the child is capable of knowing, voluntary and considered judgment, must follow the child's wishes even if the attorney for the child believes that what the child wants is not in the child's best interests" ( Matter of Swinson v. Dobson, 101 A.D.3d 1686, 1687, 956 N.Y.S.2d 765 (4th Dept. 2012), lv denied 20 N.Y.3d 862, 965 N.Y.S.2d 81, 987 N.E.2d 642 [2013] [internal quotation marks omitted] ). Nevertheless, an attorney for the child is authorized to substitute his or her own judgment for that of the child where the attorney "is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child" ( 22 NYCRR 7.2 [d][3]; see Swinson, 101 A.D.3d at 1687, 956 N.Y.S.2d 765 ; see generally Matter of Brian S. [Tanya S.], 141 A.D.3d 1145, 1147–1148, 34 N.Y.S.3d 851 (4th Dept. 2016) ). Here, the AFC fulfilled his obligation to inform the court that the subject children had expressed their wishes to live with their mother, notwithstanding his position that they should be placed in the father's custody (see 22 NYCRR 7.2 [d][3] ). Additionally, the record supports a finding that the children "lack[ed] the capacity for knowing, voluntary and considered judgment" ( id. ; see Matter of Rosso v. Gerouw–Rosso, 79 A.D.3d 1726, 1728, 914 N.Y.S.2d 829 (4th Dept. 2010) ) and that following the children's wishes would have placed them at a substantial risk of imminent and serious harm (see Matter of Isobella A. [Anna W.], 136 A.D.3d 1317, 1320, 25 N.Y.S.3d 465 (4th Dept. 2016) ).
The mother further contends that the court erred in declining to conduct a Lincoln hearing. Inasmuch as the AFC expressed the children's wishes to the court (see Matter of Montalbano v. Babcock, 155 A.D.3d 1636, 1637 (4th Dept 2017), lv denied 31 N.Y.3d 912, 81 N.Y.S.3d 372, 106 N.E.3d 755 [2018] ), the children were both of young age (see Matter of Olufsen v. Plummer, 105 A.D.3d 1418, 1419, 963 N.Y.S.2d 804 (4th Dept. 2013) ), and there are indications in the record that they were being coached on what to say to the court (see Matter of Sloma v. Sloma, 148 A.D.3d 1679, 1680, 51 N.Y.S.3d 275 (4th Dept. 2017) ), we perceive no abuse of discretion in the court's denial of the mother's request for a Lincoln hearing (see Matter of Charles M.O. v. Heather S.O., 52 A.D.3d 1279, 1280, 860 N.Y.S.2d 773 (4th Dept. 2008) ; cf. Matter of Noble v. Brown , 137 A.D.3d 1714, 1714–1715, 28 N.Y.S.3d 209 (4th Dept. 2016) ; see generally Matter of Yeager v Yeager , 110 A.D.3d 1207, 1209, 973 N.Y.S.2d 381 (3d Dept. 2013) ).
Finally, we reject the mother's contention that the court erred in directing that her visitation with the children be supervised. "Courts have broad discretion in determining whether visits should be supervised" ( Matter of Campbell v. January, 114 A.D.3d 1176, 1177, 979 N.Y.S.2d 740 (4th Dept. 2014), lv denied 23 N.Y.3d 902, 987 N.Y.S.2d 606, 10 N.E.3d 1163 [2014] ; see Matter of Vieira v. Huff, 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684 (4th Dept. 2011) ), and that determination will not be disturbed where, as here, there is a sound and substantial basis in the record to support it (see Matter of Chilbert v. Soler, 77 A.D.3d 1405, 1406, 907 N.Y.S.2d 757 (4th Dept. 2010), lv denied 16 N.Y.3d 701, 917 N.Y.S.2d 108, 942 N.E.2d 319 [2011] ).
All concur except Bannister, J., who dissents and votes to reverse in accordance with the following memorandum:
I respectfully disagree with the majority's conclusion that the Family Court Referee did not abuse his discretion in denying the request of respondent-petitioner mother for a Lincoln hearing. I therefore dissent and would reverse the order and remit the matter to Family Court for further proceedings and a new determination on petitioner-respondent father's amended petition and the mother's cross petition (see Matter of Noble v. Brown, 137 A.D.3d 1714, 1715, 28 N.Y.S.3d 209 (4th Dept. 2016) ).
While the decision whether to conduct a Lincoln hearing is discretionary, it is " ‘often the preferable course’ " to conduct one ( id. ; see Matter of Jessica B. v Robert B., 104 A.D.3d 1077, 1078, 961 N.Y.S.2d 608 (3d Dept. 2013) ). Indeed, a child's preference, although not determinative, is an "important" factor that provides the court, while considering the potential for influence and the child's age and maturity, "some indication of what is in the child's best interests" ( Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). In addition, the in camera testimony of a child may " ‘on the whole benefit the child by obtaining for the [court] significant pieces of information [it] needs to make the soundest possible decision’ " ( Matter of Walters v. Francisco, 63 A.D.3d 1610, 1611, 881 N.Y.S.2d 253 (4th Dept. 2009), quoting Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969] ).
In this case, the children were 10 and 7 years old, respectively, at the time of the proceeding, ages at which a child's "wishes [are] not necessarily entitled to the ‘great weight’ we accord to the preferences of older adolescents ... [but are], at minimum, ‘entitled to consideration’ " ( Matter of Rivera v. LaSalle, 84 A.D.3d 1436, 1439, 923 N.Y.S.2d 254 (3d Dept. 2011) ). Most importantly, the Attorney for the Children (AFC) substituted his judgment for that of the children and advocated that custody be transferred from the mother to the father, despite the fact that the children had been in the mother's custody since birth and the fact that the father admitted to having committed an act of domestic violence against the mother. While the AFC did inform the court of the children's expressed wishes to live with the mother, in my view, the court should have conducted a Lincoln hearing to consider those wishes and the reasons for them. Inasmuch as the position of the children differed from that of the AFC, it is quite possible that in camera interviews of the children would provide the court with significant information relevant to the court's determination of the best interests of the children.