FAMILY COURT DID NOT PROVIDE FATHER WITH EVERY REASONABLE INFERENCE AND RESOLVE ALL CREDIBILITY ISSUES IN HIS FAVOR WHEN CONSIDERING MOTHER’S MOTION TO DISMISS THE CUSTODY MODIFICATION PETITION AFTER FATHER’S TESTIMONY; ALTHOUGH FATHER DESCRIBED WHAT THE CHILDREN TOLD HIM, SUCH HEARSAY CAN BE ADMISSIBLE IN ABUSE AND NEGLECT PROCEEDINGS; IN ADDITION, THE LINCOLN HEARING, WHICH WAS CANCELLED BY THE JUDGE, COULD HAVE SERVED TO CORROBORATE FATHER’S TESTIMONY; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s motion to dismiss at the close of father’s testimony in this modification of custody proceeding should not have been granted. The judge granted the motion to dismiss because there was no corroboration of father’s testimony which described what the children told him. However the children’s hearsay is admissible when it concerns abuse or neglect.  After dismissing the petition, the court cancelled the scheduled Lincoln hearing  The cancellation compounded the judge’s error because the children’s testimony at a Lincoln hearing can serve to corroborate a parent’s testimony:

The father testified that the children made numerous statements to him describing the mother’s physical discipline of them and detailing the mother’s excessive alcohol consumption. The father also stated that he had observed changes in the children’s behavior, pointing specifically to the older child exhibiting signs of excessive nervousness and both children’s reluctance to return to their mother’s home at the conclusion of his parenting time. “A child’s out-of-court statements are admissible in a Family Ct Act article 6 proceeding when they pertain to abuse or neglect and are sufficiently corroborated” … , and “the hearing court is accorded considerable discretion in determining whether there is sufficient corroboration” … . Notably, “[a] relatively low degree of corroboration is sufficient, and the requirement may be satisfied by any other evidence tending to support the reliability of the child’s statements” … .

We find that Family Court improperly granted the mother’s motion to dismiss as it failed to provide the father with the benefit of every reasonable inference and resolve all credibility issues in his favor … . Of greater concern, given the court’s reason for granting the motion — lack of corroboration of the father’s accusations — it abused its discretion in canceling the Lincoln hearing as “information shared by [the children] during a Lincoln hearing may serve to corroborate other evidence adduced at a fact-finding hearing” … . At the time of the hearing, the children were nine and six years of age and the record is bereft of any indication that the children were unwilling or incapable of participating in the Lincoln hearing. Thus, we remit the matter to Family Court to conduct a Lincoln hearing and any appropriate hearing following same … . Matter of Kalam EE. v Amber EE., 2025 NY Slip Op 07050, Third Dept 12-18-25

Practice Point: Consult this decision for insight into how the evidence presented by the petitioner in a custody modification proceeding should be analyzed in the face of a motion to dismiss, including the admissibility of hearsay presented by the petitioner describing what the children told the petitioner.

Practice Point: Children’s testimony at a Lincoln hearing can serve to corroborate a parent’s testimony. Here it was deemed reversible error for the judge to dismiss the petition after petitioner’s testimony on the ground there was no corroboration of the statements petitioner ascribed to the children while cancelling the Lincoln hearing which could have provided corroboration.