| Matter of Spencer v Spencer |
| 2011 NY Slip Op 04565 [85 AD3d 1244] |
| June 2, 2011 |
| Appellate Division, Third Department |
| In the Matter of Scott T. Spencer, Respondent, v Susan M. Spencer,Appellant. |
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McCarthy, J. Appeal from an order of the Family Court of Chemung County (Buckley, J.),entered July 21, 2010, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody.
The parties are the parents of three children (born in 1997, 1999 and 2001). As reflected intheir divorce judgment, the parties agreed to joint legal custody, physical placement withrespondent (hereinafter the mother), and visitation with petitioner (hereinafter the father) everyother weekend. In 2009, the father commenced this proceeding seeking to modify the custodialarrangement based upon an improper relationship that the mother's male friend had with one ofthe parties' children while in the mother's care. Family Court temporarily placed the children withthe father. After several court appearances and an in camera interview with each of the children,the court issued an order awarding primary physical custody to the father and extensive visitationto the mother. The mother appeals.
If the mother consented to the order, she would be precluded from appealing because shewould not be considered an aggrieved party (see CPLR 5511; Matter of Sterling vDyal, 52 [*2]AD3d 894, 895 [2008]). We find that she didnot consent. Her counsel objected more than once to Family Court entering an order withoutholding a hearing. At the fourth appearance, which occurred nine months after the petition wasfiled and the temporary order was issued, the court proposed to finish the case that day. After thecourt explained how it felt that the case should be resolved, it noted that if there were problemsin the future a party could come back with a new petition. The court then asked the mother if theproposed disposition was acceptable, to which she responded, "[f]or now." Due to the court'sdiscussion of resolving the case, it is unclear if the mother understood that she was not requiredto consent and that she could still demand a hearing. The court did not assure that the motherunderstood her rights, that the order was final as opposed to another temporary order, or what shewould be required to demonstrate if she was not satisfied with the order and filed a new petition.Under the circumstances, the mother's statement cannot be considered consent to entry of theorder (cf. Matter of Leighton vBazan, 36 AD3d 1178, 1179 [2007]; compare Matter of Verry v Verry, 63 AD3d 1228, 1229-1230[2009], lv denied 13 NY3d 707 [2009]).
As to the merits, Family Court erred by modifying the custody order without holding afact-finding hearing. The father's petition adequately alleged a change in circumstances, namelythat, among other things, the mother exposed the children to a convicted sex offender and shewas aware that this individual had an inappropriate relationship with one of the children (see Matter of Christopher B. v PatriciaB., 75 AD3d 871, 872-873 [2010]; Matter of Gary J. v Colleen L., 288 AD2d720, 722 [2001]). The mother admitted that an inappropriate relationship occurred, but deniedknowing about it. The parties disagreed about most of the other allegations. The motherspecifically objected to the court's failure to hold a hearing, and the court lacked recordinformation that would permit it to determine whether the alleged change in circumstancesrequired a modification of the prior custody order (see Matter of Christopher B. v PatriciaB., 75 AD3d at 872-873). A court may not grant a final order based upon mere allegationsand a request by an attorney for a party or the children; evidentiary proof is required (see Matter of Twiss v Brennan, 82AD3d 1533, 1535 [2011]). Thus, we must remit for Family Court to hold a hearing on thepetition.
Because we are remitting this matter, we need not address the parties' remaining arguments,save one. Family Court and the parties inaccurately referred to the in camera interviews with thechildren as a Lincoln hearing. The purpose of a Lincoln hearing in a custodyproceeding "is to corroborate information acquired through testimonial or documentary evidenceadduced during the fact-finding hearing" (Matter of Justin CC. [Tina CC.], 77 AD3d 207, 212 [2010]; seeMatter of Lincoln v Lincoln, 24 NY2d 270, 273 [1969]). Thus, a true Lincolnhearing is held after, or during, a fact-finding hearing; there is no authority or legitimate purposefor courts to conduct such interviews in place of fact-finding hearings, and Family Court erred indoing so here. Additionally, we caution the court to protect the children's right to confidentialityby avoiding disclosure of what children reveal in camera during a custody proceeding (seeMatter of Verry v Verry, 63 AD3d at 1229; Matter of Hrusovsky v Benjamin, 274AD2d 674, 676 [2000]; compare Matter of Justin CC. [Tina CC.], 77 AD3d at 212-213).
Peters, J.P., Spain, Garry and Egan Jr., JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and matter remitted to [*3]the Family Court ofChemung County for further proceedings not inconsistent with this Court's decision and, pendingsaid proceedings, which shall be held as soon as practicable, the July 2010 order shall remain ineffect as a temporary order.