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Court considered whether a custody modification was warranted. A.S. v. L.C., 2023 N.Y. Slip Op. 50042 (N.Y. Fam. Ct. 2023)


A Lincoln hearing, named after a court case, is a process where the judge interviews a child privately to understand their preferences regarding custody or visitation. The purpose is to consider the child’s viewpoint without parental influence when making decisions about their welfare. The hearing allows the judge to gather information directly from the child to help determine what arrangement would be in their best interests. It ensures the child’s voice is heard in court proceedings involving custody and visitation disputes.

In A.S. v. L.C., 2023 N.Y. Slip Op. 50042 (N.Y. Fam. Ct. 2023), a contentious child custody case, testimony elicited during a Lincoln hearing was used to help the court determine the custody arrangement. The initial custody arrangement granted the mother primary custody of the child, with the father having visitation rights.

Background facts
The legal proceedings initiated by Ms. S. against Mr. C. involve custody and visitation rights concerning their minor child, A.C. Allegations include Mr. C.’s failure to comply with custody orders by restricting telephone access, making disparaging remarks, and not adhering to custody exchange protocols. Ms. S. also filed a petition for an order of protection, citing harassment by Mr. C. During the proceedings, both parties presented various petitions and allegations against each other, including violations of custody orders, failure to follow COVID-19 protocols, and disputes over the child’s activities. Testimony was taken virtually and in person, and the Attorney for the Child requested a Lincoln hearing to determine the child’s preferences. Post-trial motions were filed, including one by Mr. C. for permission to attend his sister’s funeral with the child. The court reserved judgment on counsel fees related to this motion. The proceedings culminated in the submission of closing arguments and proposed parenting plans by both parties.

The court had to decide whether there were substantial changes in circumstances warranting modification of the prior custody order and whether any modifications would serve the child’s best interests. Additionally, it needed to address allegations of violations of the existing custody order and determine appropriate remedies.

The holding with respect to the custody arrangement was that the father would retain sole legal and residential custody of the child. Additionally, the mother’s parenting time would be subject to modifications to establish a set determinative schedule, aimed at minimizing communication between the parents. The court concluded that joint custody was not feasible given the level of conflict between the parties. The decision aimed to provide stability for the child while addressing the ongoing disputes and tension between the parents.

The court found that the mother’s allegations of harassment against the father were not substantiated. The incidents cited did not meet the legal threshold for harassment, and the court did not find evidence of any family offense. Additionally, the court found that the mother’s claims of violations of the custody order by the father were not supported by clear and convincing evidence. The father’s actions regarding the child’s sports equipment and communication were found to be reasonable, and the mother’s claims lacked sufficient proof. Both parties’ violation petitions were dismissed.

The court determined that there was a substantial change of circumstances warranting a review of the custodial arrangement. Issues such as communication problems between the parents, discrepancies regarding the father’s work schedule, and disagreements over parenting time were central to the court’s decision. Testimony and evidence presented during the trial revealed ongoing disputes and tension between the parties, adversely affecting the child’s well-being. The court considered various factors, including parental fitness, stability, and the child’s best interests, in reaching its decision.

Despite the acrimony between the parents, the court acknowledged both parents’ efforts to maintain a relationship with the child. However, joint custody was deemed unworkable given the level of conflict. The court concluded that the father should retain sole legal and residential custody, with modifications to the parenting time schedule to minimize communication between the parents. The court emphasized the importance of stability for the child and the need to ensure his continued well-being.

Based on the evidence presented and considerations of the child’s best interests, the court determined that modification of the custody arrangement was necessary. The father was granted sole legal and residential custody, while the mother’s parenting time was adjusted to provide consistency and reduce conflict. The court’s decision aimed to promote the child’s stability and welfare, considering the challenges posed by the parents’ contentious relationship. The court expressed confidence in the parents’ ability to rely on support from their respective families to care for the child during their parenting time.

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