​FAMILY COURT SHOULD HAVE HELD A LINCOLN HEARING TO DETERMINE THE WISHES OF THE CHILD, WHO WAS ABOUT TO TURN 16, IN THIS CUSTODY MODIFICATION PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the court should have held a Lincoln hearing in this modification of custody proceeding:

We find that Family Court abused its discretion in denying the attorney for the child’s request for a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. While the determination of whether to conduct a Lincoln hearing lies within Family Court’s discretion, it is indeed the preferred method for ascertaining the child’s wishes … . At the time of the hearing, the child was six days shy of being 16 years old and the mother’s primary argument in support of her petition was that the child preferred to reside with her in Florida. “[A] Lincoln hearing would have provided the court with significant pieces of information it needed to make the soundest possible decision” …  . The wishes of this soon-to-be 16-year-old child, although not determinative, should have been considered, including any insight he may have provided as to the current status of his relationship with each parent …  . It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing “is to ascertain a child’s preferences and concerns” … . Matter of Samantha WW. v Malek XX., 2023 NY Slip Op 03052, Third Dept 6-8-23

Practice Point: Here it was an abuse of discretion to fail to hold a Lincoln hearing to determine the wishes of the child, who was nearly 16, in this custody modification proceeding.