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When should children testify in family law proceedings?

When custody disputes occur, New York judges attempt to resolve the matter without putting the child in the position of having to choose between their parents. In some cases, however, input from the child may be necessary to give the court the information it needs to make the best decision, so a “Lincoln hearing” will take place.

Named after a litigant in a New York custody case heard by the Court of Appeals, a Lincoln hearing is a confidential proceeding. The child answers the judge’s questions in the presence of their attorney, but neither their parents nor the attorneys for the parents are permitted to be present. A stenographer records the session, and if there is an appeal, a sealed hearing transcript is forwarded to the Appellate Division. These measures allow the child to express a custodial preference, if they have one, without harming their relationship with either parent.

The extent to which a child’s testimony will affect the outcome of a custody dispute will depend on the judge’s assessment of the evidence. For example, smaller children may be able to give a truthful account of things they witnessed but lack the maturity to give a valid reason for why they want to live with one parent instead of the other. A teenager may be able to give a more reasoned overview, but the judge will have to consider whether there is any personal agenda behind their preference. (i.e., they want to live with dad because mom confiscates their phone as punishment.)

In the original case heard by the New York Court of Appeals in 1969, Richard Lincoln sought custody of his three children, who were in their mother Sonia’s custody as per a separate agreement that was later incorporated into a divorce decree. After a hearing that included a private in camera interview with the children, the trial court granted custody to Mr. Lincoln while allowing Mrs. Lincoln to have visitation rights.

Sonia Lincoln protested, saying that the confidential interview violated her rights because it allowed the custody decision to be made on the basis of “secret evidence.” The Court of Appeals dismissed the claim, stating that in a custody proceeding, the court’s primary concern must always be the welfare of the children. The rights of the parents should always take second place to that demand.

Most New York courts agree that Lincoln hearings can limit the stress and psychological risk a child is exposed to when they are in the middle of a custody dispute. When they are not being scrutinized by their parents, they will be more likely to talk freely, and a private setting allows them to have their say without being placed under emotional strain.

If you are facing a custody dispute with your former spouse, a New York family law attorney can help you strive for the outcome that is in the best interests of your children. Custody matters are sensitive for both parents and children, and experienced legal counsel can help you keep everything in perspective. To set up a free in-office initial consultation with an experienced divorce and family law attorney, call the law office of Jayson Lutzky, P.C. at 718-329-9500. Mr. Lutzky has over 35 years of experience representing clients. Visit his blog to learn more about divorce law in New York.

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