Particularly in light of the allegations that the mother threatened to retaliate against her 14-year old daughter’s testimony supporting the father, it was an abuse of discretion for the trial Judge to require the daughter to testify in open court in this custody modification proceeding. The girl should have been interviewed by the judge in chambers without her parents and their lawyers being present.
That sentiment was noted by the Appellate Division, Third Department, in its June 27, 2013 decision in Casarotti v. Casarotti that affirmed Madison County Family Court Judge Biagio DiStefano‘s order changing primary physical custody of the girl from the mother’s residence in New York to the residence of her father in California, despite the presence of the daughter’s 18- and 20-year old siblings in New York.
In this case, the parties were the divorced parents of two daughters (born in 1992 and 1998) and a son (born in 1994). The younger daughter was the only subject of this proceeding.
The family had lived together in northern California until the parties’ separation in 2000. At that time, the mother moved with the three children to New York. The parties later consented to joint custody of the children in a stipulation that was incorporated, but not merged into their 2007 judgment of divorce. In accordance with the stipulation, the mother maintained primary physical custody of the children in New York. The father, who remained in California, was granted liberal parenting time during weekends, winter holidays and summer vacations.
In July 2012, the father commenced this custody modification proceeding, seeking primary physical custody of the child. He alleged that the two older children had moved out of the mother’s house, the mother was emotionally abusive to the youngest child, and that the child now wanted to live with him in California.
Judge DiStefano held a hearing at which the parties, the 14-year-old child and her 20-year-old sister testified. Judge DiStefano granted the father’s petition and awarded him primary physical custody, while otherwise maintaining joint custody.
On appeal by the mother, the Third Department affirmed. The testimony at the hearing showed a sufficient change in circumstances to warrant modification in the child’s best interest. The relationship between the mother and this 14-year old girl had deteriorated and had become strained as the child matured, resulting in escalating verbal confrontations approximately once a week that sometimes involved the mother directing profanity and vulgarities at the child.
The child testified that, on at least one recent occasion, the mother told her to move out of the house and, when the child left the house, the mother locked the door behind her. The child spent the evening on the front porch, called her sister and father because she did not know where to go and attempted unsuccessfully to find somewhere to pass the night. Later that night, the mother allowed her back into the house. The sister and mother testified that the mother had similarly kicked the two older children out of the house several times, which resulted in the sister moving out and the brother spending significant time periods at the home of a family friend.
Moreover, the record also indicated that the mother made no effort to foster a meaningful relationship between the father and the child. The mother, at times, impeded their communication.
Particularly troubling to the appellate court was the testimony from the father, the sister and the child that the mother threatened the children with negative consequences should they testify in support of the father’s requested custody modification. The sister testified that her mother threatened to cut off her financial aid for college and that she was worried that she would be denied access to her half brother, the mother’s child from a subsequent relationship who also lived in the mother’s home. The child testified that her mother told her that there would be consequences to testifying and “sort of” told her that these consequences would be “bad,” but she was reluctant to elaborate on these threats in further detail.
After noting those threats, the Third Department stated that it was an abuse of discretion for the trial Judge not to have allowed the girl to be interviewed in chambers. The attorney for the child and the father had both requested that Judge DiStefano hold such a Lincoln hearing (see, Matter of Lincoln v. Lincoln, 24 N.Y.2d 270 ), rather than require the child to testify in open court. Unfortunately, the appellate court noted, this request was denied and, after the mother refused to consent to the child testifying outside of the parties’ presence, the child had to testify under oath in front of both parents.
While we recognize that Family Court has the discretion to decide whether a Lincoln hearing is appropriate, it was clearly an abuse of discretion for the court to put the child in this awkward position, notwithstanding that her wishes were already known to her parents, particularly considering the testimony that the mother attempted to influence the testimony of her children. We again emphasize that “’a child . . . should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them’” when explaining the reasons for his or her preference.
Given the circumstances of this case and the fact that at age 14, her preference would be entitled to great weight, a Lincoln hearing would have limited the risk of harm and “would have been far more informative and worthwhile than . . . an examination of the child under oath in open court.”
In any event, although the child hesitated to fully articulate the mother’s threats, the record demonstrated to the appellate court the mother’s willingness to put her own interests before the child’s interest in having healthy relationships with both of her parents.
Although awarding the father physical custody of the child separated her from her siblings, the two older children spent significant time away from the mother’s home. The child was confident that she could remain close to her siblings despite her relocation. In that respect, the Third Department specifically found that the relocation was in the child’s best interests, particularly in light of Judge DiStefano’s liberal award of visitation to the mother, in both California and New York, on weekends, school breaks, winter holidays and summer vacations.
Finally, the appellate court found no error in the court’s division of the future travel expenses associated with the mother’s visitation, which required the father to pay the full cost of one round trip for the child to visit the mother each year, with the parties equally sharing the cost of any additional trips.