Noble v. Brown

• Decision Date: 25 March 2016
• Citation: 28 N.Y.S.3d 209,137 A.D.3d 1714
• Parties: In the Matter of Yvette NOBLE, Petitioner–Appellant, v. Leon C. BROWN, Sr., Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1714
28 N.Y.S.3d 209

In the Matter of Yvette NOBLE, Petitioner–Appellant,
v.
Leon C. BROWN, Sr., Respondent–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

March 25, 2016.

28 N.Y.S.3d 210

D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth deV. Moeller of Counsel), for Petitioner–Appellant.

Susan B. Marris, Attorney for the Child, Manlius.

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Petitioner mother commenced this proceeding seeking to modify a prior order pursuant to which respondent father had sole legal and primary physical custody of the parties' daughter, who was born in August 2000. Family Court granted the father's motion to dismiss the proceeding at the close of the mother's case on the ground that the mother failed to establish a sufficient change in circumstances to warrant an inquiry into the best interests of the child. The mother appeals.

We conclude that the court abused its discretion in denying the mother's request that it conduct a Lincoln hearing before ruling on the father's motion (see Matter of Yeager v. Yeager, 110 A.D.3d 1207, 1209–1210, 973 N.Y.S.2d 381 ; Matter of Minner v. Minner, 56 A.D.3d 1198, 1199, 867 N.Y.S.2d 601 ; cf. Matter of Walters v. Francisco, 63 A.D.3d 1610, 1611, 881 N.Y.S.2d 253 ; see generally Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 271–274, 299 N.Y.S.2d 842, 247 N.E.2d 659 ). Such a hearing may be conducted "during or after fact-finding" (Matter of Jessica B. v. Robert B., 104 A.D.3d 1077, 1078 n., 961 N.Y.S.2d 608 ), and may be used to support an allegation of a change in circumstances (see Matter of Nelson v. Morales, 104 A.D.3d 1299, 1300, 961 N.Y.S.2d 691 ). The decision whether to conduct such a hearing is discretionary, but it is "often the preferable course" to conduct one (Yeager, 110 A.D.3d at 1209, 973 N.Y.S.2d 381 ; see Minner, 56 A.D.3d at 1199, 867 N.Y.S.2d 601 ).

In this case, the child was 14 years old at the time of trial and expressed a preference to live with the mother, the Attorney for the Child did not...