| Matter of Minner v Minner |
| 2008 NY Slip Op 08861 [56 AD3d 1198] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Michelle Minner, Appellant, v David Minner,Respondent. |
—[*1] Mary Anne Connell, Law Guardian, Buffalo, for Matthew M. and Emily M.
Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.),entered August 8, 2007 in a proceeding pursuant to Family Court Act article 6. The order, insofaras appealed from, denied the amended petition for modification of an order of custody.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs and the matter is remitted to Family Court, Cattaraugus County, for furtherproceedings in accordance with the following memorandum: We conclude that, in denying theamended petition pursuant to which petitioner mother sought permission for the parties' childrento relocate with her to Texas, the Referee erred in failing to ascertain whether the children wishedto relocate to Texas with their mother, who was their primary physical custodian. Although theLaw Guardian offered the Referee the opportunity to conduct an in camera interview with thechildren, the Referee declined to do so. We of course acknowledge that interviews with childreninvolved in relocation disputes are not mandatory (see Mascoli v Mascoli, 132 AD2d 653[1987]), and that the decision whether to interview the children is a matter of discretion for thetrial court (see Matter of Lincoln v Lincoln, 24 NY2d 270, 274 [1969]). We concludeunder the facts of this case, however, that "the better practice would [have been] for the [Referee]to conduct an in-camera interview of the child[ren]" because that information would have beenhelpful in determining the amended petition, particularly in view of the fact that the childrenwere 11 and 13 years old at the time of the hearing (Matter of Brice v Mitchell, 184AD2d 1008 [1992]; see Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117 [1990];cf. Mascoli, 132 AD2d at 653). "While the express wishes of children are not controlling,they are entitled to great weight, particularly where their age and maturity would make their inputparticularly meaningful" (Koppenhoefer, 159 AD2d at 117). We therefore reverse theorder insofar as appealed from and remit the matter to Family Court for a hearing and newdetermination on the amended petition. Present—Hurlbutt, J.P., Centra, Fahey, Pine andGorski, JJ.