You are here: / / THE RECORD DID NOT DEMONSTRATE THE PARENTS COULD NOT COMMUNICATE ABOUT...
, ,

THE RECORD DID NOT DEMONSTRATE THE PARENTS COULD NOT COMMUNICATE ABOUT THE NEEDS OF THE CHILD AND THEREFORE DID NOT SUPPORT AWARDING SOLE CUSTODY TO FATHER; THE JUDGE SHOULD NOT HAVE LEFT IT UP TO THE PARTIES TO CRAFT A PARENTING-TIME SCHEDULE; A CHILD’S TESTIMONY IN A LINCOLN HEARING HAS NO INDEPENDENT EVIDENTIARY VALUE AND MUST BE KEPT CONFIDENTIAL (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the record did not support sole legal custody of the child by father, and the judge’s delegating the arrangement of parenting time for mother was improper. In addition, the Third Department noted that statements made by the child to the court in a Lincoln hearing must remain confidential:

… [T]he record is devoid of any indication that the parties are unable to effectively communicate to meet the child’s needs, or that joint legal custody has been otherwise rendered unfeasible or inappropriate … . As the record lacks support for granting the father sole legal custody, we must reverse that portion of the amended order … . …

… [P]arenting time with a noncustodial parent is presumed to be in a child’s best interests, and Family Court is required to craft a schedule that allows that parent frequent and regular access to the child, unless it finds that doing so would be inimical to the child’s welfare … . The court made no such finding here. Instead, Family Court improperly delegated the parenting time determination to the father, and this error requires reversal … .

… [W]e take this opportunity to remind Family Court that statements made by a child during a Lincoln hearing carry no independent evidentiary value …, and that such statements must remain confidential to protect children in custody proceedings “from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships” … . … [I]nformation shared by a child during a Lincoln hearing may serve “to corroborate other evidence adduced at a fact-finding hearing or to ascertain a child’s thoughts and feelings regarding the crafting of a custodial arrangement, [but] such considerations must remain silent to ensure that the child’s right to confidentiality is protected” … . Matter of C.M. v Z.N., 2024 NY Slip Op 04427, Third Dept 9-12-24

Practice Point: Here the court noted there was no proof the parents could not communicate to meet the child’s needs and, therefore, the record did not support the award of sole custody to father.

Practice Point: A parenting-time schedule must be crafted by the judge and not left up to the agreement of the parties.

Practice Point: A child’s testimony in a Lincoln hearing has no independent evidentiary value and must not be revealed.

 

You might also like
Judge’s Mistaken Belief Period of Post-Release Supervision Was Mandatory Required Resentencing.
THE PROSECUTOR AND THE JUDGE AGREED DEFENDANT’S ALFORD PLEA WOULD BE PREMISED ON HIS ABILITY TO APPEAL A GRAND-JURY EVIDENCE ISSUE; THE THIRD DEPARTMENT HELD SUCH CONDITIONAL PLEAS ARE GENERALLY NOT ACCEPTED IN NEW YORK; MATTER SENT BACK TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (THIRD DEPT). ​
COMPENSATION FOR CARE BY CLAIMANT’S FAMILY MEMBER MUST BE PAID TO THE CLAIMANT, NOT THE FAMILY MEMBER 3RD DEPT.
FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT).
Failure to Make Sufficient Effort to Transport Injured Inmate to His Hearing Required Annulment
False Imprisonment Claims Against Hospital for Involuntary Confinement Turn on Finding of Medical Malpractice
CONTRARY TO SUPREME COURT’S RULING, THE REAL ESTATE PURCHASE AGREEMENT, BY ITS TERMS, DECLARED THE CONTRACT CANCELLED IF THE INSPECTION REVEALED PROBLEMS AND THE PARTIES DID NOT AGREE ON HOW TO ADDRESS THOSE PROBLEMS WITHIN TEN DAYS; THE INSPECTION IN FACT REVEALED PROBLEMS AND NO AGREEMENT ON RESOLUTION WAS MADE WITHIN THE ALOTTED TEN DAYS (THIRD DEPT). ​
TOWN’S WITHDRAWAL FROM A COORDINATED ASSESSMENT PROGRAM (CAP) DOES NOT TERMINATE TOWN ASSESSOR’S TERM.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT’S BEHAVIOR BEFORE AND DURING THE TRAFFIC STOP DID NOT CREATE... TO BE ENTITLED TO A CHANGE OF VENUE AS OF RIGHT, THE DEMAND MUST BE SERVED WITH...