State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 519006 

_________________________________

In the Matter of DAVID BARR 

BATTIN,

Respondent,

v

TAMI LYNNE BATTIN,

Appellant.

(Proceeding No. 1.)

_________________________________

MEMORANDUM AND ORDER

In the Matter of TAMI L.

BATTIN,

Appellant,

v

DAVID B. BATTIN,

Respondent.

(Proceeding No. 2.)

(And Another Related Proceeding.)

_________________________________

Calendar Date: June 4, 2015

Before: Garry, J.P., Rose, Devine and Clark, JJ.

__________

Donna C. Chin, Ithaca, for appellant.

David Barr Battin, Utica, respondent pro se.

Susan B. McNeil, Ithaca, attorney for the child.

__________
-2- 519006 

Garry, J.P.

Appeal from an order of the Family Court of Tompkins County

(Cassidy, J.), entered April 18, 2014, which, among other things,

granted petitioner's application, in proceeding No. 1 pursuant to

Family Ct Act article 6, to modify a prior order of custody.

David B. Battin (hereinafter the father) and Tami L. Battin

(hereinafter the mother) are the parents of two sons (born in

1995 and 1998). The parties have previously engaged in extensive

custody litigation, culminating in a 2009 order that, among other

things, continued a provision from a prior order placing the sons

in the mother's sole custody. In December 2012, the younger son

left the mother's home, traveled to the father's home and refused

to return to the mother's custody. The father thereafter

commenced a custody modification proceeding, and the mother

commenced proceedings seeking enforcement of the 2009 order,

among other things. Following a fact-finding hearing, Family

Court placed the younger son in the father's sole custody, with

parenting time for the mother according to the younger son's

wishes.1 The mother appeals.

The mother contends that Family Court erred in failing to

conduct a Lincoln hearing and in finding that, at age 16, the

younger son was too old for such a hearing. We note that

confidential Lincoln hearings are conducted in proceedings

pursuant to Family Ct Act article 6 because "[a] child who is

explaining the reasons for his or her preference . . . '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 or be required to openly

choose between them'" (Matter of Julie E. v David E., 124 AD3d

934, 937 [2015], quoting Matter of Lincoln v Lincoln, 24 NY2d

270, 272 [1969] [brackets omitted]; compare Matter of Justin CC.

[Tina CC.], 77 AD3d 207, 209-212 [2010]). These considerations

apply with equal force to children of all ages; indeed, it may be

particularly important to ensure that older children have the

1 The older son had reached the age of 18 during the

pendency of the proceedings, and was not included in the order.
-3- 519006 

opportunity to express their views in confidence, as their

preferences are given great weight in custody proceedings (see

Matter of Casarotti v Casarotti, 107 AD3d 1336, 1339 [2013], lv

denied 22 NY3d 852 [2013]; Matter of McGovern v McGovern, 58 AD3d

911, 913 n 2 [2009]). 

However, a review of the record here reveals that the

mother directly opposed the request for such a hearing; when the

father and the attorney for the child requested that Family Court

conduct a confidential Lincoln interview with the child, the

mother's counsel objected, stating that the mother would not

consent, and – directly contradicting her appellate arguments –

asserting that the younger son was old enough to testify in open

court.2 Accordingly, the mother's claims are unpreserved (see

Matter of Baxter v Perico, 288 AD2d 717, 717-718 [2001]). In any

event, although Lincoln hearings are preferable, they are not

mandatory; we would have found no abuse of discretion in view of,

among other things, the ample, undisputed record evidence

regarding the younger son's preferences (see Matter of Walker v

Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804

[1999]).

Rose, Devine and Clark, JJ., concur.

2 The younger son was not ultimately called as a witness,

and he did not testify. For the reasons stated above, calling a

child to testify in a Family Ct Act article 6 proceeding is

generally neither necessary nor appropriate; a Lincoln hearing is

the preferred manner for ascertaining a child's wishes. 
-4- 519006 

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court