| Matter of Jessica B. v Robert B. |
| 2013 NY Slip Op 02118 [104 AD3d 1077] |
| March 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Jessica B., Individually and on Behalf ofJoseph B., an Infant, Respondent, v Robert B., Respondent. Thomas R. Cline, asAttorney for the Child, Appellant. |
—[*1] Timothy E. Thayne, Binghamton, for Robert B., respondent. Carman M. Garufi, Binghamton, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Broome County (Pines, J.),entered August 9, 2011, which granted petitioner's application, in a proceeding pursuantto Family Ct Act article 6, for visitation with her sibling.
Petitioner, who lives in Massachusetts, has two younger siblings, Joseph B. (born in1994) and Melissa B. (born in 1997). Joseph and Melissa resided together in BroomeCounty, in the custody of respondent, their paternal uncle, until September 2010. Josephthen moved to Massachusetts, where he resides with petitioner and in the custody of theMassachusetts Department of Children and Families. In November 2010, petitionercommenced this proceeding on behalf of herself and Joseph, seeking visitation withMelissa. Family Court granted visitation following a hearing, but, citing Joseph'stroubled background, limited visitation to occur during daytime hours, on one weekendper month, in Broome County. The attorney for the child representing Joseph appeals.[*2]
The sole issue raised on this appeal is a challengeto Family Court's denial of the request by the attorney for Joseph for a Lincolnhearing to ascertain Melissa's wishes (see Matter of Lincoln v Lincoln, 24 NY2d270 [1969]). Such a hearing, though often preferable, is not mandatory, and thedetermination is addressed to Family Court's discretion (see Matter of DeRuzzio vRuggles, 88 AD3d 1091, 1091 [2011]; Matter of Walker v Tallman, 256AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]). Here, on the final dayof the fact-finding hearing, the attorney representing Joseph made a written applicationrequesting that the court conduct a Lincoln hearing prior to rendering adetermination, but the attorney representing Melissa stated that a Lincoln hearingwas not necessary, as he would convey her wishes.[FN*] Notably, the appellate attorney for the child representing Melissa offers strong supportfor Joseph's appeal, alleging that Melissa's wishes were not in fact accurately oradequately conveyed by her trial counsel. In light of this argument, we find our recordlacking. Although not determinative, the wishes of this 14-year-old child should beconsidered, and the insight she may provide will be helpful; thus, in these unusualcircumstances, we remit for a Lincoln hearing (see Matter of Flood v Flood,63 AD3d 1197, 1199 [2009]; see also Matter of Tamara FF. v John FF., 75 AD3d 688,690 [2010]).
Mercure, J.P., Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs, and matter remitted to the Family Court of Broome County for furtherproceedings not inconsistent with this Court's decision.
Footnote *: The timing of therequest was appropriate, as Lincoln hearings are properly held during or afterfact-finding (see Matter ofSpencer v Spencer, 85 AD3d 1244, 1245 [2011]).