Custody Proceedings – Evidence - In-camera and Lincoln interviews
In-camera interviews by the court are important, and perhaps necessary, in contested custody and visitation cases. New York trial courts are free to conduct such interviews without the consent of the parties, and in the absence of counsel,[1] and may be required to do so.[2]
However, the court may not conduct an in-camera interview unless a stenographic record is made of the interview. The court should also make it available to counsel, although it is not required to do so, after which an opportunity should be afforded to explain or rebut the material brought out in the interview.[3]
The Appellate Division, Third Department has indicated that there is a distinction between in camera interviews with the children and a Lincoln hearing. The purpose of a Lincoln hearing in a custody proceeding "is to corroborate information acquired through testimonial or documentary evidence adduced during the fact-finding hearing.” Thus, a true Lincoln hearing is held after, or during, a fact-finding hearing; there is no authority or legitimate purpose for courts to conduct interviews in place of fact-finding hearings.[4] The decision to hold a Lincoln hearing is a matter committed to Family Court’s sound discretion. In the context of a Family Ct Act article 6 proceeding, a Lincoln hearing is the preferred manner for ascertaining a child’s wishes. A child, regardless of age, 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.[5]
Depending on the age, maturity, and motivations of the child or minor, a true or false picture of the family situation may emerge from the interview. Children caught up in the divorce process of their parents have many conflicting emotions and ideas, and respond in different ways to questioning. Children also are subjected to brainwashing.
Since under the judicial division of labor the trial judge determines credibility,[6] it is important that the judge is well-versed as to the behavior of children under stress. What appears to the judge to be a kindly and friendly in-camera interview may, in fact, have been threatening to the child. For this reason, a verbatim record of the interview is now mandatory.[7]
[1] Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 (1969), is a leading Court of Appeals decision which held that it was not error or the deprivation of the fundamental rights of the parties for the trial court to have a confidential interview with the children, in the absence of counsel, and without the consent of the parties, since the rights of the parents must yield to the paramount interests of the children.
The trial court may interview the child when necessary or helpful, and it may obtain independent evidence to assist in the determination of custody and visitation. Barnett v. Barnett, 80 A.D.2d 717, 437 N.Y.S.2d 728 (3d Dep't 1981); Corsell v. Corsell, 101 A.D.2d 766, 475 N.Y.S.2d 415 (1st Dep't 1984).
LaMonte v. LaMonte, 38 A.D.2d 635, 327 N.Y.S.2d 130 (3d Dep't 1971), held that a mother's rights were not abridged by an in-camera interview with the children without her consent.
[2] McDermott v. McDermott, 124 A.D.2d 715, 508 N.Y.S.2d 467 (2d Dep't 1986), held that the trial court erred in failing to conduct an in-camera interview with the children, on the record, especially where it accorded the children's preference great weight in its custody determination.
Mosesku v. Mosesku, 108 A.D.2d 795, 485 N.Y.S.2d 122 (2d Dep't 1985), held that the failure of the trial court to conduct an in-camera interview with a 3-year-old child, on the record, where the court gave paramount importance to the child's wishes, made intelligent review of its determination impossible. There must be a full and comprehensive hearing to resolve disputed factual issues, and specific findings must be made.
[3] Civil Practice Law and Rules §4019(a) mandates the stenographic record be taken.
[4] Matter of Spencer v Spencer, 85 A.D.3d 1244, 925 N.Y.S.2d 227 (3d Dept., 2011).
In Matter of Stevens v Gibson, 99 A.D.3d 1052, 952 N.Y.S.2d 648 (3d Dept., 2012) a custody modification proceeding, the Appellate Division held that the court's in camera interview with the child, which was conducted shortly after the petition was filed, before issue had been joined and approximately eight months before the commencement of the fact-finding hearing, did not constitute a “Lincoln hearing”. The purpose of a Lincoln hearing in a custody proceeding is to corroborate information acquired through testimonial or documentary evidence adduced during the fact-finding hearing.
In Roberta GG. v. Leon HH., 99 A.D.3d 1057, 952 N.Y.S.2d 778 (3d Dept., 2012) the father cross-petitioned for custody. After speaking with the child in camera and conducting a fact-finding hearing, Family Court directed that the parties have joint legal custody and awarded residential custody to the father with visitation to the mother. The Appellate Division affirmed. It rejected the mothers argument that the in camera interview with the child was improper because it occurred prior to the fact-finding hearing. It was held on the same date and the court was satisfied by its review that, contrary to the mother's speculation, it served to corroborate evidence presented at the fact-finding hearing.
[5] In Matter of Gerber v Gerber, 133 A.D.3d 1133, 21 N.Y.S.3d 386 (3d Dept., 2015) the Appellate Division observed that the decision to hold a Lincoln hearing is a matter committed to Family Court’s sound discretion. In the context of a Family Ct Act article 6 proceeding, “a Lincoln hearing is the preferred manner for ascertaining a child’s wishes” (Matter of Battin v. Battin, 130 AD3d 1265, 1266 n. 2 [2015]). A child—regardless of age—“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.”)
[6] "The trial court is the best judge of the credibility of witnesses . . . The trial court also may interview the children when necessary . . . [and] when helpful it may obtain independent evidence to assist in its determination." Barnett v. Barnett, 80 A.D.2d 717, 437 N.Y.S.2d 728 (3d Dep't 19810.
[7] Desmond v. Desmond, 134 Misc. 2d 62, 509 N.Y.S.2d 979 (Fam. Ct. 1986), held that the court might hold its in-camera interview with the children in the public park in order to relieve their distress over the custody proceedings.
In-camera interviews by the court are important, and perhaps necessary, in contested custody and visitation cases. New York trial courts are free to conduct such interviews without the consent of the parties, and in the absence of counsel,[1] and may be required to do so.[2]
However, the court may not conduct an in-camera interview unless a stenographic record is made of the interview. The court should also make it available to counsel, although it is not required to do so, after which an opportunity should be afforded to explain or rebut the material brought out in the interview.[3]
The Appellate Division, Third Department has indicated that there is a distinction between in camera interviews with the children and a Lincoln hearing. The purpose of a Lincoln hearing in a custody proceeding "is to corroborate information acquired through testimonial or documentary evidence adduced during the fact-finding hearing.” Thus, a true Lincoln hearing is held after, or during, a fact-finding hearing; there is no authority or legitimate purpose for courts to conduct interviews in place of fact-finding hearings.[4] The decision to hold a Lincoln hearing is a matter committed to Family Court’s sound discretion. In the context of a Family Ct Act article 6 proceeding, a Lincoln hearing is the preferred manner for ascertaining a child’s wishes. A child, regardless of age, 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.[5]
Depending on the age, maturity, and motivations of the child or minor, a true or false picture of the family situation may emerge from the interview. Children caught up in the divorce process of their parents have many conflicting emotions and ideas, and respond in different ways to questioning. Children also are subjected to brainwashing.
Since under the judicial division of labor the trial judge determines credibility,[6] it is important that the judge is well-versed as to the behavior of children under stress. What appears to the judge to be a kindly and friendly in-camera interview may, in fact, have been threatening to the child. For this reason, a verbatim record of the interview is now mandatory.[7]
[1] Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 (1969), is a leading Court of Appeals decision which held that it was not error or the deprivation of the fundamental rights of the parties for the trial court to have a confidential interview with the children, in the absence of counsel, and without the consent of the parties, since the rights of the parents must yield to the paramount interests of the children.
The trial court may interview the child when necessary or helpful, and it may obtain independent evidence to assist in the determination of custody and visitation. Barnett v. Barnett, 80 A.D.2d 717, 437 N.Y.S.2d 728 (3d Dep't 1981); Corsell v. Corsell, 101 A.D.2d 766, 475 N.Y.S.2d 415 (1st Dep't 1984).
LaMonte v. LaMonte, 38 A.D.2d 635, 327 N.Y.S.2d 130 (3d Dep't 1971), held that a mother's rights were not abridged by an in-camera interview with the children without her consent.
[2] McDermott v. McDermott, 124 A.D.2d 715, 508 N.Y.S.2d 467 (2d Dep't 1986), held that the trial court erred in failing to conduct an in-camera interview with the children, on the record, especially where it accorded the children's preference great weight in its custody determination.
Mosesku v. Mosesku, 108 A.D.2d 795, 485 N.Y.S.2d 122 (2d Dep't 1985), held that the failure of the trial court to conduct an in-camera interview with a 3-year-old child, on the record, where the court gave paramount importance to the child's wishes, made intelligent review of its determination impossible. There must be a full and comprehensive hearing to resolve disputed factual issues, and specific findings must be made.
[3] Civil Practice Law and Rules §4019(a) mandates the stenographic record be taken.
[4] Matter of Spencer v Spencer, 85 A.D.3d 1244, 925 N.Y.S.2d 227 (3d Dept., 2011).
In Matter of Stevens v Gibson, 99 A.D.3d 1052, 952 N.Y.S.2d 648 (3d Dept., 2012) a custody modification proceeding, the Appellate Division held that the court's in camera interview with the child, which was conducted shortly after the petition was filed, before issue had been joined and approximately eight months before the commencement of the fact-finding hearing, did not constitute a “Lincoln hearing”. The purpose of a Lincoln hearing in a custody proceeding is to corroborate information acquired through testimonial or documentary evidence adduced during the fact-finding hearing.
In Roberta GG. v. Leon HH., 99 A.D.3d 1057, 952 N.Y.S.2d 778 (3d Dept., 2012) the father cross-petitioned for custody. After speaking with the child in camera and conducting a fact-finding hearing, Family Court directed that the parties have joint legal custody and awarded residential custody to the father with visitation to the mother. The Appellate Division affirmed. It rejected the mothers argument that the in camera interview with the child was improper because it occurred prior to the fact-finding hearing. It was held on the same date and the court was satisfied by its review that, contrary to the mother's speculation, it served to corroborate evidence presented at the fact-finding hearing.
[5] In Matter of Gerber v Gerber, 133 A.D.3d 1133, 21 N.Y.S.3d 386 (3d Dept., 2015) the Appellate Division observed that the decision to hold a Lincoln hearing is a matter committed to Family Court’s sound discretion. In the context of a Family Ct Act article 6 proceeding, “a Lincoln hearing is the preferred manner for ascertaining a child’s wishes” (Matter of Battin v. Battin, 130 AD3d 1265, 1266 n. 2 [2015]). A child—regardless of age—“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.”)
[6] "The trial court is the best judge of the credibility of witnesses . . . The trial court also may interview the children when necessary . . . [and] when helpful it may obtain independent evidence to assist in its determination." Barnett v. Barnett, 80 A.D.2d 717, 437 N.Y.S.2d 728 (3d Dep't 19810.
[7] Desmond v. Desmond, 134 Misc. 2d 62, 509 N.Y.S.2d 979 (Fam. Ct. 1986), held that the court might hold its in-camera interview with the children in the public park in order to relieve their distress over the custody proceedings.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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