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What is a Lincoln hearing?
by Gary Muldoon
Muldoon & Getz
Rochester, New York
www.muldoongetz.com

In custody cases, it sometimes is necessary for a child to testify. Obviously this places a child in a very difficult situation, and may cause repercussions in a variety of ways.

The New York Court of Appeals addressed the situation in Lincoln v Lincoln, 24 NY2d 270 (1969): the child (with the attorney for the child present) may be questioned by the judge in camera, with the parents and their attorneys absent. The parents’ consent to this procedure is not required. The child, attorney for the child, stenographer and judge are the only ones present.

If new information adverse to any party arises during the in camera testimony, the judge should check on the accuracy of the information in open court. Lincoln, supra.

The rationale of the Lincoln hearing is to protect a child from having to choose openly between parents or to relate difficulties with them.

The attorney for the child must attend the Lincoln hearing. Miller v Miller, 220 AD2d 133 (3d Dept 1996). A stenographer must be present as well. CPLR 4019. The in camera hearing is to be recorded. It is part of a record on appeal and forwarded to the Appellate Division under seal. CPLR 4019. The transcript of the child’s testimony is not revealed, even on appeal: if an appeal takes place, the in camera transcript is provided to the Appellate Division under seal. Ladd v Bellavia, 151 AD2d 1015 (4th Dept 1989); see also, Reed v Reed, 189 Misc2d 734 (Sup Ct 2001).

The Lincoln hearing should not supplant an in-court hearing: parents retain the right to present evidence in open court on custody and visitation issues. Turner v King, 79 AD2d 654 (2d Dept 1980). 

A judge is not required to hold a Lincoln hearing. Mitchell v Mitchell, 209 AD2d 845 (3d Dept 1994). A judge may decide custody without a child testifying, particularly where the child is of a young age. The attorney for the child may oppose having the child testify even in camera, particularly when the child is young or the child might be traumatized. Reed v Reed, 189 Misc 2d 734 (Sup Ct 2001). Where the children are young and neither of the parties nor the attorney for the child requested an in camera interview, the court's failure to conduct a Lincoln hearing was not required. Rudy v Mazzetti, 5 AD3d 777 (2d Dept 2004).

A Lincoln hearing was appropriate to determine the child’s wishes in whether to order visitation with a parent in prison. Flood v Flood, 63 AD3d 1197, 880 NYS2d 748 (3d Dept 2009). 

But a person charged with a crime has a constitutional right to confront adverse witnesses. That does not extend to all types of Family Court cases: hearsay is allowed in proceedings under several different articles of the Family Court Act. However, allowing a child to testify against parent in camera in a domestic violence proceeding was an abuse of discretion. Deith v Deith, 27 AD3d 649, 811 NYS2d 451 (2d Dept 2006).

© 2012 by Gary Muldoon