Opinion
546 CAF 20-00706
07-16-2021
In the Matter of Ariel PONTILLO, Petitioner-Respondent-Appellant, v. Lance JOHNSON-KOSIOREK, Respondent-Petitioner-Respondent. Jennifer M. Lorenz, Esq., Attorney for the Child, Appellant.
CAITLIN M. CONNELLY, BUFFALO, FOR PETITIONER-RESPONDENT-APPELLANT. JENNIFER M. LORENZ, ORCHARD PARK, ATTORNEY FOR THE CHILD, APPELLANT PRO SE. DAVID J. PAJAK, ALDEN, FOR RESPONDENT-PETITIONER-RESPONDENT.
CAITLIN M. CONNELLY, BUFFALO, FOR PETITIONER-RESPONDENT-APPELLANT.
JENNIFER M. LORENZ, ORCHARD PARK, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-PETITIONER-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Family Court, Genesee County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner-respondent mother and the Attorney for the Child (AFC) each appeal from an order that, in essence, dismissed the mother's petition seeking to suspend respondent-petitioner father's visitation and granted the father's cross petition seeking to modify a prior custody and visitation order by, among other things, awarding him sole custody of the subject child.
The mother contends on her appeal that Family Court erred in making its custody determination before the parties had completed psychological evaluations ordered by the court. We agree. "In custody disputes, the value of forensic evaluations of the parents and child[ ] has long been recognized" ( Ekstra v. Ekstra , 49 A.D.3d 594, 595, 854 N.Y.S.2d 439 [2d Dept. 2008] ). The assistance of psychological experts in custody proceedings may be necessary where the child has exhibited emotional and behavior problems, there is sharply conflicting testimony regarding the conduct of the parties, or a party's mental health is at issue (see Markowitz v. Markowitz , 183 A.D.3d 710, 711, 121 N.Y.S.3d 884 [2d Dept. 2020] ; Ekstra , 49 A.D.3d at 595, 854 N.Y.S.2d 439 ; Matter of Thompson v. Thompson , 267 A.D.2d 516, 519, 699 N.Y.S.2d 181 [3d Dept. 1999] ; Matter of Paul C. v. Tracy C. , 209 A.D.2d 955, 955, 622 N.Y.S.2d 159 [4th Dept. 1994] ). The dispositive inquiry is whether there was sufficient testimony from the parties and other witnesses to enable the court to resolve the custody dispute without those evaluations (see Matter of Nunnery v. Nunnery , 275 A.D.2d 986, 987, 713 N.Y.S.2d 417 [4th Dept. 2000] ; see also Ekstra , 49 A.D.3d at 595, 854 N.Y.S.2d 439 ).
The mother's mental and emotional health was the central issue contested in this proceeding, and we conclude that the court abused its discretion in making its determination and awarding the father sole custody of the child without first considering the results of the psychological evaluations that it ordered (see Markowitz , 183 A.D.3d at 711, 121 N.Y.S.3d 884 ; Ekstra , 49 A.D.3d at 595-596, 854 N.Y.S.2d 439 ; Paul C. , 209 A.D.2d at 955, 622 N.Y.S.2d 159 ). Although a psychological expert testified at the fact-finding hearing on behalf of the father, that expert interviewed the parties and the subject child to assess whether the child had been sexually abused, and therefore he did not provide much information on the mother's emotional functioning, the impact her mental health issues had on her ability to parent the child, or the fitness of either parent. Thus, on this record, we cannot say that there was sufficient evidence for the court to resolve the custody dispute without considering the court-ordered psychological examinations of the parents (see Ekstra , 49 A.D.3d at 595-596, 854 N.Y.S.2d 439 ; cf. Nunnery , 275 A.D.2d at 987, 713 N.Y.S.2d 417 ). Consequently, we reverse the order, reinstate the mother's petition, and remit the matter to Family Court for completion of the court-ordered psychological evaluations and for a new hearing to determine whether modification of the parties’ prior order of custody and visitation is in the child's best interests. Pending the court's determination upon remittal, the custody and visitation provisions in the order appealed from shall remain in effect.
The mother's further contention on her appeal that the court abused its discretion in failing to hold a Lincoln hearing is unpreserved for our review because she did not request such a hearing (see Matter of Montalbano v. Babcock , 155 A.D.3d 1636, 1636-1637, 65 N.Y.S.3d 396 [4th Dept. 2017], lv denied 31 N.Y.3d 912, 81 N.Y.S.3d 372, 106 N.E.3d 755 [2018] ). In any event, the court did not abuse its discretion in failing to hold a Lincoln hearing given the young age of the child and the fact that the child may have been inadvertently coached by the mother to repeat unfounded allegations (see Matter of Muriel v. Muriel , 179 A.D.3d 1529, 1530-1531, 118 N.Y.S.3d 861 [4th Dept. 2020], lv denied 35 N.Y.3d 908, 2020 WL 3423744 [2020] ; Matter of Kakwaya v. Twinamatsiko , 159 A.D.3d 1590, 1591, 72 N.Y.S.3d 739 [4th Dept. 2018], lv denied 31 N.Y.3d 911, 2018 WL 3118124 [2018] ).
In light of our determination, the mother's remaining contentions on her appeal and the AFC's contentions on her appeal are academic.