MATTHEW v. JENNIFER (2021)

As a contempt hearing draws close in this longstanding dispute, this Court is asked to address the issue of whether to hold a Lincoln hearing. The contempt proceeding, initiated in June, 2020, derives from a prior court which restricted the mother, under a joint custody agreement, from unilaterally signing her children up for sports and extracurriculars and otherwise required her to enforce certain “house rules” restricting the activities of her sons until they complied with the visitation requirements in the couple's separation agreement. The father, in seeking contempt, alleges the mother violated the terms of the order in several actions and this Court has held a hearing on the mother's compliance with the court order. The attorney for the children initially requested that the Court conduct such an in camera interview with the children, but in her most recent correspondence, she indicates that her request is withdrawn. Nonetheless, the mother's attorney has also requested that a Lincoln hearing be conducted; the father, on the other hand, stands in opposition. For the reasons that follow, the Court concludes that conducting a Lincoln hearing in a proceeding in which the only relief sought is contempt is inappropriate, and the request is denied.

The use of private, confidential interviews of children by judges in custody proceedings was first sanctioned by the Court of Appeals in the seminal case of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659 (1969). In rejecting the mother's argument that such interviews, in the absence of the parties or their counsel, constituted “a deprivation of the fundamental rights” of litigants, the Court of Appeals reasoned that “in a custody proceeding arising out of a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children” (id at 271-272, 299 N.Y.S.2d 842, 247 N.E.2d 659). Those interests required that a child, “already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them or be required to openly choose between them” (id at 272, 299 N.Y.S.2d 842, 247 N.E.2d 659). Thus, the Lincoln procedure was justified in order to prevent “placing an unjustifiable emotional burden on the ․ children.”¹

Since Lincoln, Courts have noted that “[t]he purpose of a Lincoln hearing is not primarily evidentiary; it is instead to assist the court in making the determination of what serves the best interests of the child” (Matter of Heasley v. Morse, 144 A.D.3d 1405, 1408, 42 N.Y.S.3d 377 [3d Dept. 2016]), as well as “to corroborate information acquired through testimonial or documentary evidence adduced during the fact-finding hearing” (Matter of Rush v. Roscoe, 99 A.D.3d 1053, 1055, 953 N.Y.S.2d 308 [3d Dept. 2012]). Thus, it is the nature and function of custody proceedings, with their focus on the child's best interests, that justify the Lincoln procedure. “For the court to fulfill its primary responsibility of protecting the welfare and interests of a child in the context of a Family Ct. Act Article 6 proceeding, protecting the child's right to confidentiality remains a paramount obligation” (Matter of Julie E. v. David E., 124 A.D.3d 934, 937-38, 1 N.Y.S.3d 431 [3d Dept. 2015]; see Matter of Gonzalez v. Hunter, 137 A.D.3d 1339, 1343, 26 N.Y.S.3d 625 [3d Dept. 2016] [“the primary purpose of a Lincoln hearing that allows a child to openly share his or her concerns with the court”]).

In other contexts, however, where the best interests analysis is not the primary focus of the proceeding, Lincoln type hearings are discouraged. The prime example may be abuse and neglect proceedings under Article 10 of the Family Court Act. There, courts have held that the use of true Lincoln hearings is inappropriate, given the significant due process rights involved. The leading case may be In re Justin CC., 77 A.D.3d 207, 209-13, 903 N.Y.S.2d 806 (3d Dept. 2010). The Justin CC. court started with the premise that Lincoln hearings are allowed in custody proceedings because “[c]hildren must be protected from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships[, and this protection is achieved by sealing the transcript of the in camera Lincoln hearing” (id at 210, 903 N.Y.S.2d 806 [internal quotation marks omitted]).

In other contexts, however, the due process rights of parents outweigh this justification:

“Although there are sound reasons for maintaining confidentiality of a child's testimony in a custody proceeding, we find no basis for providing such a protection at the fact-finding stage of a neglect/abuse proceeding. While the issue at the fact-finding stage of a custody proceeding is what custodial arrangement is in the best interest of the child, the issue at the fact-finding stage of a Family Ct. Act article 10 proceeding is whether the petitioner has proved by a preponderance of the evidence that the child is neglected and/or abused and that the respondent is responsible for the neglect and/or abuse. Most significantly, unlike a custody proceeding, the position of the allegedly neglected or abused child in an article 10 proceeding may be adverse to the respondent.

In that regard, it is firmly established that every litigant has a fundamental right, guaranteed by the Due Process Clause of both the Federal and State Constitutions, to confront his or her accuser” (id).

In the end, the Court in Justin CC. came up with the solution of a so-called “modified Lincoln” hearing, in which “a child provides testimony during the fact-finding stage of a Family Ct. Act Article 10 proceeding, outside the presence of the respondent but with all counsel present and afforded a full opportunity to cross-examine the child” (id at 211, 903 N.Y.S.2d 806). Justin CC. has been widely followed (see e.g. Matter of Julie E. v. David E., 124 A.D.3d 934, 937-38, 1 N.Y.S.3d 431 [3d Dept. 2015]; Matter of Sandra S. v. Abdul S., 30 Misc. 3d 797, 803, 914 N.Y.S.2d 858 [Fam. Ct. 2010]; Dorene L. v. Dhaneswar R., 29 Misc. 3d 462, 464-65, 906 N.Y.S.2d 871 [Fam. Ct. 2010], affd sub nom. Doreen L. v. Dhaneswar R., 89 A.D.3d 428, 931 N.Y.S.2d 862 [1st Dept. 2011] [modified Lincoln hearing used in Article 8 Family Offense proceeding]).

This case, while evolving out of a custody proceeding, involves solely an application for contempt. As such, the primary focus is not the best interests of the children; rather, it is the alleged misconduct of the mother, and the mother's due process rights are paramount. Thus, as in Article 10 cases, the Court holds that the use of a Lincoln hearing is not appropriate. This conclusion is supported by the only case that this court could find that has touched on the issue at all. In H.W. v. J.F., 15 Misc. 3d 1142(A), 2007 WL 1574420 (Fam. Ct. 2007) the Court, in the context of the parties’ ongoing custody proceeding, had conducted Lincoln hearings with the parties’ child on previous occasions. Nevertheless, when an application for contempt was made, the Court said “[b]ecause the nature of the instant application was contempt and as a result the consequences for Mr. F. could include a commitment to a correctional center, the court felt that it could not conduct a ‘Lincoln’ style hearing in this type of a proceeding even though the child was only fourteen (14) years of age.” While not analyzing the issue in depth, it is clear that, as with the Article 10 cases, the H.W. court was of the opinion that the significant due process rights of the alleged contemptor outweighed whatever interest there may have been in the child's confidentiality. This Court reaches the same conclusion here.

The mother, seeking to require the Lincoln hearing, argues that the voice of the children may be a factor in deciding whether the father in this instance as been “prejudiced” by the mother's conduct in violating a court order. The mother's counsel argues that the father, in seeking contempt, must produce clear and convincing evidence of prejudice. The mother notes that the children's sons would testify that they have no interest in visiting their father, a factor that would demonstrate a lack of prejudice. Section 753[A] of the Judiciary Law provides that contempt is permissible for violation of a duty by which a right or remedy of the father may be “defeated, impaired, impeded, or prejudiced.” Judiciary Law § 753[A]; Matter of Menard v. Roberts, 194 A.D.3d 1427, 143 N.Y.S.3d 653 (4th Dept. 2021); Matter of Carl KK. v. Michelle JJ., 175 A.D.3d 1627, 110 N.Y.S.3d 66 (3d Dept. 2019); Augat v. Hart, 244 A.D.2d 800, 665 N.Y.S.2d 970 (3d Dept. 1997). In this instance, the mother's argument is unavailing. If the proof finally establishes by clear and convincing evidence that the mother violated a court order that restricts her ability to unilaterally enroll her sons in activities until they visit their father as her agreement requires, then her conduct sends a message to her sons that the agreement giving their father visitation is meaningless as it cannot be enforced by the courts and further that their mother has become, in essence, a sole custodial parent, able to violate a court order and ignore the terms of her agreement with impunity. The prejudice to the father in the mother's conduct, if determined to violate the court order, is readily apparent: it defeats, impairs and impedes his bargained for rights as a joint custodial parent. Nothing that any one of the children can say would either amplify or diminish the prejudice to the father by the mother's conduct, if proven to violate the court order.

Accordingly, the application for a Lincoln hearing is denied.

FOOTNOTES

1.   This Court, on prior occasions, has urged the Court of Appeals to revisit the Lincoln holding, as the half-century-old decision lacks any citations to any professional studies of child psychology or an analysis of the consequences to children when they are questioned in camera during a custody or matrimonial proceeding regarding their preferences or relations with their parents. Too often, in this Court's experience, that prospect can put the children in a hot seat and leaves them potentially exposed to subtle or even direct parental influence seeking to persuade the child on what to tell the Court in private. See J.F. v. D.F., 112 N.Y.S 3d 438, p. 81 & n.65 (Sup. Ct. Monroe Cty. 2018)(Dollinger, J.).

Richard A. Dollinger, J.