A Long Island Child Custody Lawyer stated that this appeal was the result of an April 2010 order of the Family Court pursuant to a neglect proceeding. In April 2010, the Family Court granted joint custody of the child to the mother, the father, and the grandmother, with the grandmother having physical custody. The order gave the mother weekly supervised visitation. In November 2011, the April 2010 order had been dismissed and the mother filed an action seeking to modify the visitation order. The mother requested weekly visitation and approval for her husband (whom she had recently married) to be an additional visitation supervisor. However, following the hearing the Family Court modified the visitation order setting the mother’s visitation as a two-hour period which was to be held a minimum of one time each month supervised by the grandmother. The appeal followed.
The Appellate Division cited to the standard of modifying a visitation order, which is “upon showing that there has been a sufficient subsequent change in circumstances and that modification is necessary to ensure the best interests of the child”. The sufficient change in circumstances was the absence of a visitation provision in the April 2010 order. However, the Appellate Division found that there was no sound and substantial basis for which the Family Court should have reduced the mother’s visitation. A Long Island Child Custody Lawyer said that the mother provided evidence that she had improved her personal life, parenting skills, and living situation. The Family Court did not find her proof to lack credibility and improperly premised its decision on the fact that the grandmother was inconvenienced by the weekly visits.
The attorney for the child insisted on a Lincoln hearing. A Long Island Child Custody Lawyer said that a Lincoln hearing is where a judge will question a child in front of a camera without the parents and their attorneys present. The rationale of having such a hearing is to protect the child from having to openly express their preference of parent they wish to live with. Such a hearing lies within the Family Court’s discretion. Here, the Appellate Division noted that a Lincoln hearing, while not dispositive, could be useful in determining the extent to which the child’s mother’s visitation is in the child’s best interest.
The Appellate Division also remanded the case to determine the husband’s credibility as to becoming a visitation supervisor. The husband testified that he was the citizen of a foreign country, he had been in the United States since 2009 pursuing a doctoral degree at Clarkson University, did not plan on returning to his native country and would voluntarily leave his passport with the Family Court while is acting as a visitation supervisor.