Opinion
03-25-2016
In the Matter of Yvette NOBLE, Petitioner–Appellant, v. Leon C. BROWN, Sr., Respondent–Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth deV. Moeller of Counsel), for Petitioner–Appellant. Susan B. Marris, Attorney for the Child, Manlius.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth deV. Moeller of Counsel), for Petitioner–Appellant.
Susan B. Marris, Attorney for the Child, Manlius.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Petitioner mother commenced this proceeding seeking to modify a prior order pursuant to which respondent father had sole legal and primary physical custody of the parties' daughter, who was born in August 2000. Family Court granted the father's motion to dismiss the proceeding at the close of the mother's case on the ground that the mother failed to establish a sufficient change in circumstances to warrant an inquiry into the best interests of the child. The mother appeals.
We conclude that the court abused its discretion in denying the mother's request that it conduct a Lincoln hearing before ruling on the father's motion (see Matter of Yeager v. Yeager, 110 A.D.3d 1207, 1209–1210, 973 N.Y.S.2d 381 ; Matter of Minner v. Minner, 56 A.D.3d 1198, 1199, 867 N.Y.S.2d 601 ; cf. Matter of Walters v. Francisco, 63 A.D.3d 1610, 1611, 881 N.Y.S.2d 253 ; see generally Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 271–274, 299 N.Y.S.2d 842, 247 N.E.2d 659 ). Such a hearing may be conducted "during or after fact-finding" (Matter of Jessica B. v. Robert B., 104 A.D.3d 1077, 1078 n., 961 N.Y.S.2d 608 ), and may be used to support an allegation of a change in circumstances (see Matter of Nelson v. Morales, 104 A.D.3d 1299, 1300, 961 N.Y.S.2d 691 ). The decision whether to conduct such a hearing is discretionary, but it is "often the preferable course" to conduct one (Yeager, 110 A.D.3d at 1209, 973 N.Y.S.2d 381 ; see Minner, 56 A.D.3d at 1199, 867 N.Y.S.2d 601 ).
In this case, the child was 14 years old at the time of trial and expressed a preference to live with the mother, the Attorney for the Child did not oppose a Lincoln hearing, and many of the changed circumstances alleged by the mother concerned matters within the personal knowledge of the child but not that of the mother or her witnesses. Under those circumstances, we conclude that a Lincoln hearing would have provided the court with " ‘significant pieces of information [it needed] to make the soundest possible decision’ " (Walters, 63 A.D.3d at 1611, 881 N.Y.S.2d 253, quoting Lincoln, 24 N.Y.2d at 272, 299 N.Y.S.2d 842, 247 N.E.2d 659 ; see Yeager, 110 A.D.3d at 1209–1211, 973 N.Y.S.2d 381 ; Matter of Stramezzi v. Scozzari, 106 A.D.3d 748, 749–750, 964 N.Y.S.2d 585 ; Matter of Oddo v. Collins, 100 A.D.3d 1512, 1512–1513, 954 N.Y.S.2d 367 ). We therefore reverse the order and remit the matter to Family Court for further proceedings and a new determination on the mother's amended petition (see Minner, 56 A.D.3d at 1199, 867 N.Y.S.2d 601 ; see generally Oddo, 100 A.D.3d at 1512–1513, 954 N.Y.S.2d 367 ; Matter of Flood v. Flood, 63 A.D.3d 1197, 1199, 880 N.Y.S.2d 748 ), and "[w]e take no position as to what the new determination should be" (Stramezzi, 106 A.D.3d at 750, 964 N.Y.S.2d 585 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the amended petition is reinstated, and the matter is remitted to Family Court, Onondaga County, for further proceedings.