| Matter of Rivera v LaSalle |
| 2011 NY Slip Op 03687 [84 AD3d 1436] |
| May 5, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jeannine M. Rivera, Respondent, v Michael D.LaSalle, Respondent. Christopher Hammond, as Attorney for the Children,Appellant. |
—[*1] Jeannine M. Rivera, Unadilla, respondent pro se. Monica V. Carrascoso, Cooperstown, forMichael D. LaSalle, respondent.
Garry, J. Appeal from an order of the Family Court of Otsego County (Burns, J.), enteredDecember 15, 2009, which dismissed petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) have two children(born 1998 and 2001). The parties divorced in 2007 pursuant to a separation agreement in whichthey agreed to continue an alternating week-to-week joint custody arrangement they had begun in2005. In May 2009, the mother commenced this modification proceeding seeking primaryphysical custody of both children on the ground that the week-to-week arrangement had becomeunworkable due to the children's growth, their increasing involvement in athletic andextracurricular activities and the location of the mother's home approximately one hour fromtheir school. Following a two-day fact-finding hearing and a Lincoln hearing, FamilyCourt [*2]awarded primary physical custody to the father. Theattorney for the children appeals, contending that the court erred in determining that it was in thechildren's best interests to live with the father.
Initially, we agree with the assertion that Family Court breached the children's right toconfidentiality by revealing the preferences that they expressed during the Lincolnhearing and in a subsequent letter to the court allegedly written by the younger child (seegenerally Matter of Lincoln v Lincoln, 24 NY2d 270 [1969]).[FN*]While this error appears wholly inadvertent, and would not justify disturbing an otherwise validcustody determination (see Matter ofVerry v Verry, 63 AD3d 1228, 1229 [2009], lv denied 13 NY3d 707 [2009]), wereiterate that "[c]hildren must be protected from having to openly choose between parents oropenly divulge intimate details of their respective parent/child relationships" (Matter ofSellen v Wright, 229 AD2d 680, 681-682 [1996]). Their right to confidentiality "remain[s]paramount absent a direction to the contrary" (Matter of Hrusovsky v Benjamin, 274AD2d 674, 676 [2000]).
The attorney for the children contends that Family Court gave insufficient weight to thechildren's preferences—in particular, those expressed by the older child—in makingits best interests determination. Family Court is, of course, not required to abide by the wishes ofa child to the exclusion of other factors in the best interests analysis (see Matter of Smith v Smith, 61 AD3d1275, 1277-1278 [2009]). If such were the case, " 'then all a court would be required todecide is whether [a child's] preference of parent is voluntary and untainted and then follow thechild's wish' " (Matter of Cornell vCornell, 8 AD3d 718, 719 [2004], quoting Dintruff v McGreevy, 34 NY2d 887,888 [1974]). However, a child's wishes are "some indication of what is in [his or her] bestinterests" (Eschbach v Eschbach, 56 NY2d 167, 173 [1982]). Though not dispositive, achild's preferences are one of the factors to be considered in making a custody determination (see Matter of Valenti v Valenti, 57AD3d 1131, 1136 [2008], lv denied 12 NY3d 703 [2009]; Matter of Oddy vOddy, 296 AD2d 616, 617 [2002]).
Here, Family Court stated that both children "expressed an unequivocal position" during theLincoln hearing, but that the court placed little weight on either child's preference as thechildren subsequently retracted that position in the letter to the court. When the record supports afinding that a child's wishes are "confused and changing," they may be given little weight (Matter of Gravelding v Loper, 42AD3d 740, 743 [2007]). However, this record does not support such a determination, at leastas to the older child. The only indication that either child's preference had changed was allegedlycontained in the letter, which cannot be examined as it was lost. Additionally, while the court'sdecision states that the letter came from both children, the father stated that it was written by theyounger child alone; on this record, it is impossible to determine whether the text supported itsattribution to both children. Notably, in determining the best [*3]interests of more than one child, "the court must be cognizant of theindividual needs of each child" and should therefore give separate consideration to each child'spreferences (Eschbach v Eschbach, 56 NY2d at 172). Given the circumstances of theletter's delivery, we note our concern that there was minimal inquiry conducted to explore thereasons for the alleged change in preference or to ascertain "the potential for influence havingbeen exerted" (id. at 173). The receipt of the unsworn letter called for furtherdevelopment on the record—either through the attorney for the children or by means of asecond Lincoln hearing—to determine why the preference had changed, whetherthe children's wishes had diverged and, if so, whether their continued representation by the sameattorney presented any potential conflict of interest (compare Barbara ZZ. v Daniel A., 64 AD3d 929, 933-934 [2009];Corigliano v Corigliano, 297 AD2d 328, 329 [2002]).
The weight to be given to a child's preference in a custody determination becomes greater asthe child ages (see Matter of Passero vGiordano, 53 AD3d 802, 804 [2008]). Here, the older child was nearly 11 years old atthe time of the Lincoln hearing—an age at which his wishes were not necessarilyentitled to the "great weight" we accord to the preferences of older adolescents (Matter ofMcGovern v McGovern, 58 AD3d 911, 913 n 2 [2009]; see Matter of Cornell vCornell, 8 AD3d at 719; Matter of Oddy v Oddy, 296 AD2d at 617). However, basedon the older child's level of maturity and ability to articulate his preferences as reflected in theLincoln hearing transcript, we are persuaded that the unequivocal position he expressedat that time was, at minimum, "entitled to consideration" (Matter of Lowe v O'Brien, 81 AD3d 1093, 1096 [2011]; compare Matter of Winston v Gates, 64AD3d 815, 818 [2009]). The absence from the record of the letter or of any other evidencethat the older child's position had changed prevents us from determining whether a sound andsubstantial basis existed for Family Court's decision to give it little weight.
Moreover, upon this limited record, we are troubled by the possibility that the lack of weightgiven to the children's wishes may have affected Family Court's decision. The chief reason notedby the court for the award of physical custody to the father was that he resided in the districtwhere the children were attending school, and awarding custody to the father would allow thechildren to continue to engage in their academic, athletic and extracurricular activities withoutdisruption. Other factors discussed by the court were either equally balanced between the parentsor appeared to inure more to the benefit of the mother than the father. The court found that thechildren enjoyed good relationships with both parents, that the mother and father had a generallycivil and amicable relationship with one another, and that they were able to make joint decisionsin the children's best interests. With regard to their "past performance, relative fitness and abilityto guide and provide for the child[ren]'s development—both intellectually andemotionally" (Matter of McGovern v McGovern, 58 AD3d at 914-915), the courtdescribed the mother as "a sincere and well-meaning parent, acting in the best interest of herchildren." As to the father, however, the court expressed significant concern over an angryaltercation that had taken place between the father and the maternal grandmother in the presenceof one of the children, and the father's sarcasm and anger when questioned in court about theincident. Ultimately characterizing the altercation as an isolated act of domestic violence, thecourt cautioned the father that such conduct could affect future custody and visitationdeterminations and was "best not repeated." Family Court also noted that a new girlfriend hadrecently moved into the father's home and the children had some difficulty getting along with thegirlfriend's son.
Given the closeness of the determination and the deficiencies in the record regarding thechildren's wishes, this Court can neither conclude that a sound and substantial basis exists for[*4]Family Court's award of custody to the father (see Matter of Hurlburt v Behr, 70AD3d 1266, 1268 [2010], lv dismissed 15 NY3d 943 [2010]), nor can we accordappropriate weight to the children's preferences in conducting our own independent review (see Matter of Brown v Brown, 52AD3d 903, 905 [2008]; Castler v Castler, 233 AD2d 720, 721 [1996]). We thereforeremit to Family Court for further proceedings.
Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order ismodified, on the law and the facts, without costs, by reversing so much thereof as awardedprimary physical custody to respondent; matter remitted to the Family Court of Otsego Countyfor further proceedings not inconsistent with this Court's decision, and, pending a newdetermination, custody of the children shall remain temporarily with respondent; and, as somodified, affirmed.
Footnote *: During the 10-day periodbetween the Lincoln hearing and the conclusion of the fact-finding hearing, the fatherdelivered the letter to the attorney for the children and then to Family Court. The court had a briefdiscussion with the father, who testified that the younger child had written the letter and that thefather did not know its contents. The court then advised the parties that the letter would be sealedand treated as part of the Lincoln hearing. Unfortunately, the letter was thereafter lost andhas not been recovered.