In a recent case in the Third Department, a petitioner mother and father had joint legal custody of a child with the father having primary physical custody pursuant to a court order. The order provided that the mother would have parenting time with the child as she and the father mutually agreed.  In 2020, the mother filed a modification petition seeking primary physical custody of the child.  The father moved to dismiss the petition and the child’s attorney, who was assigned to the case by the court to “represent” the child requested the court to conduct what’s called a Lincoln hearing.  A Lincoln hearing is when the Judge interviews a child in private only in the presence of the child’s attorney and a court stenographer.  It is a private confidential interview with the child and the Judge and their lawyer only. The court asks questions to help determine what the child wants in the current pending custody or visitation case.

In this action, the mother wanted not only sought custody, but she wanted the child to relocate to Florida.  The court denied the child’s attorney’s request for the child to be interviewed by the Judge.  The court also dismissed the petition of the mother, saying that she had not proven a change in circumstance warranting the court to consider her request to modify the current order.

 If you have a court order, in order for the court to make any changes, there must be a showing of a change in circumstance or else the order remains in effect. The mother appealed the court’s ruling.

 The mother won the appeal and the higher court, (the Appellate Division) stated that the court erred and remanded the case back, saying that the court should have had the Lincoln hearing and should have interviewed the child to see what the child wanted and what their position was.  Then then court should have consider the child’s position before determining there was no change in circumstance.

Of course, we do not know the exact age of this child.  One can only hope that the child was an older child that was old enough to have more of an input.  This case just goes to show how important an attorney for the child is in a custody or parenting case. It is a major factor which is looked at by the court.  In recent years, the courts are giving more and more weight to a child’s position as to what it is that they want, where they live, and what time they spend with the other parent.  The court is supposed to look at the entire case and see what, overall, is best for the child.  Anyone who is a parent knows what is best for a child is not always what the child wants.  One can only hope that the court will keep this in mind and not be swayed by the wave of cases and current climate whereby children are given more and more say in what happens with their relationship with their parents.

            This is why I always strive to resolve parenting issues outside of the court.  Once you are in court, the attorney for the child, as well as the court, becomes involved in your parenting and private life.  It can become problematic and something what might have been resolved outside of court can morph into a major legal battle and litigation once in court.

  At the DePalo Law Firm, we pride ourselves on being able to fight for and negotiate excellent parenting agreements and believe that parenting is one of the most important aspects of a divorce.  The law and  psychological studies have shown that it is very important for a child to have a relationship with both of their parents.  This is usually the case unless one of the parents is neglectful or damaging to the child.  At the DePalo Law Firm, we analyze the situation and proceed based on the specific circumstances of a case and fight very hard for children and parents.