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Denial of Request to Take Child’s Testimony Outside Parents’ Presence Was Abuse of Discretion

The Third Department noted that it was an abuse of discretion to deny the request for a Lincoln hearing in a custody proceeding (allowing a child to testify outside the parties’ presence):

Although not an issue directly raised on appeal, the attorney for the child and the father both requested that Family Court hold a Lincoln hearing … rather than require the child to testify in open court.  Unfortunately, this request was denied and, after the mother refused to consent to the child testifying outside of the parties’ presence, the child had to testify under oath in front of both parents. While we recognize that Family Court has the discretion to decide whether a Lincoln hearing is appropriate…, it was clearly an abuse of discretion for the court to put the child in this awkward position… . We again emphasize that “‘a child . . . should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them'” when explaining the reasons for his or her preference…. Given the circumstances of this case and the fact that – at her age [14]– her preference would  be  entitled to great weight, the record indicates that a Lincoln hearing would have limited the risk of harm and “would have been far more informative and worthwhile than . . . an examination of the child under oath in open court”… . Matter of Casarotti v Casarotti, 515270, 3rd Dept 6-27-13

 

 

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