                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     520293
____________________________________

In the Matter of REYNALD
   GONZALEZ,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DIANE E. HUNTER,
                    Appellant.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   January 11, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


     Sandra M. Colatosti, Albany, for appellant.

      Somma & Sullivan, Vestal (Michael J. Sullivan of counsel),
for respondent.

     Donna Chin, Ithaca, attorney for the child.

                             __________


Lynch, J.

      Appeal from an order of the Family Court of Broome County
(Connerton, J.), entered November 26, 2014, which, among other
things, granted petitioner's applications, in two proceedings
pursuant to Family Ct Act article 6, to modify a prior order of
custody and visitation.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a daughter (born in
2001). An order of custody was issued in November 2007, which
granted sole custody to the father and visitation to the mother.
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In August 2013, the father filed an amended petition seeking to
limit the child's visitation with the mother, asserting that the
child felt unsafe with her. On October 22, 2013, Family Court
signed competing orders to show cause by which the mother sought
an award of sole custody and the father applied to suspend all
visitation. A week later, the mother filed a violation petition
contending that the father had withheld the child from numerous
scheduled visits. Several weeks before the trial commenced, the
court conducted what it referred to as an "in camera" appearance
with the child on March 3, 2014, during which counsel for the
parties and the attorney for the child were present, but not the
parents. The court characterized the proceeding as a "mixed
record," in that the court would consider the child's testimony
in making findings of fact, but the record would be sealed to the
extent that neither party would have access. While there was
very little elaboration on the record for this format, the
attorney for the child reminded the court at the start that the
father's attorney was calling the child as a fact witness. No
objections were raised, and the child was questioned under oath
on both direct and cross-examination as to certain visitation
events, as well as her preferences for continued visitation with
the mother and where she wanted to live. At the conclusion of
the trial, Family Court granted the father's petitions, limiting
the mother's visitation to one four-hour period per week and
precluding her access to the child's educational and medical
records/providers. The court dismissed the mother's violation
petition. The mother appeals.

      In our view, there is a sound and substantial basis in the
record for Family Court's decision to reduce the mother's
visitation, and limit her access to the child's
medical/educational information. There is no dispute that the
relationship between the mother and the child has deteriorated to
the point where the child has consistently refused to attend
visitation with the mother. This breakdown in the relationship
constituted a change in circumstances that warranted an inquiry
into whether a modification of the existing order was necessary
to ensure the best interests of the child (see Matter of Susan
LL. v Victor LL., 88 AD3d 1116, 1117 [2011]). There are several
instances in the record that call into question the mother's
fitness as a parent. To illustrate, in the midst of the
                              -3-                520293

visitation controversy, the mother created a scene at the child's
school on October 24, 2013, when she attempted to physically pull
the child from the school bus in a "bear hug[]." On one occasion
in August 2013, the mother left the child home alone without
explanation. The child ended up calling 911 and was subsequently
picked up by her father. While the father has sole custody, the
mother took the child to a counselor of her own choosing even
though the child was already engaged in counseling with another
therapist. The mother downplayed the degree of force used, but
admitted hitting and kicking the child on a number of occasions
and threatening her with the use of force. Correspondingly, the
child's therapist testified that the child was reluctant to
attend visitation for fear of being harmed by her mother and
recommended a decreased amount of visitation, with input from the
child, to reduce her anxiety. Given the above, and according due
deference to Family Court's ability to assess witness
credibility, we find ample support for Family Court's
determination that it is in the best interests of the child to
reduce visitation hours for the mother and limit the mother's
access to the child's medical and school records (see Matter of
Brown v Erbstoesser, 85 AD3d 1497, 1499-1500 [2011]; Matter of
Braswell v Braswell, 80 AD3d 827, 830 [2011]; Matter of Sassower-
Berlin v Berlin, 58 AD3d 635, 637 [2009]; Matter of Flamio v
Flower, 46 AD3d 1265, 1265 [2007]).1

      We are not persuaded by the mother's complaint that Family
Court erred in failing to direct the parties to engage in family
counseling so as to enable the mother to repair her relationship
with the child. There is a contentious history between the
parents, and the mother's behavior, and its impact on the child,
is disconcerting. That said, the child's therapist suggested
that a combination of less contact with the mother and possible
family therapy might be beneficial. She hesitated in making that
recommendation at present, however, over concerns of retaliation


    1
        In her brief, the attorney for the child argues that the
mother should have no contact with the child, but, having failed
to file a notice of appeal, the contention is not properly before
this Court (see Matter of Melissa WW. v Conley XX., 88 AD3d 1199,
1201 [2011], lv denied 18 NY3d 803 [2012]).
                              -4-                520293

for what would be discussed during family therapy. On this
record, Family Court did not abuse its discretion in directing
the father to arrange for the child to continue in counseling,
leaving open the prospect of future parent involvement, while
encouraging the mother to personally engage in counseling to
assist in mending her relationship with the child.

      As for the mother's violation petition, as Family Court
aptly observed, the child may have adopted her father's
contentious attitude towards the mother, but there is no evidence
that he actively interfered with the mother's visitation or
encouraged her not to visit the mother. As such, the court
properly dismissed the violation petition.

      We also find unpersuasive the mother's further contention
that she was deprived of meaningful representation because her
attorney failed to formally move to reopen the case after two
indicated child protective reports against her were reversed.
Family Court briefly noted in its decision that the mother had
two "indicated" reports "concerning [the child] and some of the
incidents which this hearing concerned." These underlying
incidents were explored in full during the testimony of the child
protective caseworker and through the mother's own testimony. As
such, the mother was not prejudiced by counsel's failure to move
to reopen the proof, and the record otherwise confirms that
counsel provided meaningful representation throughout the
proceedings (see Matter of Robinson v Bick, 123 AD3d 1242, 1243
[2014]; Matter of Knight v Knight, 92 AD3d 1090, 1093 [2012]).

      Finally, we take this opportunity to express our concern
with Family Court's "mixed record" format utilized to obtain the
child's testimony. In the context of a Family Ct Act article 6
proceeding, this Court has emphasized that "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]; accord Matter
of Gerber v Gerber, 133 AD3d 1133, 1135 n 6 [2015]). The
fundamental reason is that a child being asked to explain his or
her preferences "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 Lincoln
                              -5-                520293

v Lincoln, 24 NY2d 270, 272 [1969]; see Matter of Julie E. v
David E., 124 AD3d 934, 937 [2015]). A true Lincoln hearing is
conducted in confidence with the court, with only the attorney
for the child in attendance, and it is of utmost importance to
recognize "that the right to confidentiality during a Lincoln
hearing belongs to the child and is superior to the rights or
preferences of the parents" (Matter of Julie E. v David E., 124
AD2d at 937; see Matter of Rohde v Rohde, 135 AD3d 1011, 1011 n
[2016]; compare Matter of Justin CC. [Tina CC.], 77 AD3d 207,
209-212 [2010]). While the premise for this hearing was the
father's request to present the child as a fact witness, as we
have recently observed, "calling a child to testify in a Family
Ct Act article 6 proceeding is generally neither necessary nor
appropriate" (Matter of Battin v Battin, 130 AD3d at 1266 n 2).
That is particularly so here, where both the child's therapist
and a child protective caseworker testified as to the child's
concerns and certain underlying events, as did the parties.
Moreover, this hearing went well beyond factual events to direct
questioning as to the child's preferences concerning visitation.
While the record has been partially sealed insofar as counsel for
the parties are precluded from providing the parents with a copy
of the transcript or relay verbatim the contents, we believe this
format does not adequately protect the child's right to
confidentiality or foster the primary purpose of a Lincoln
hearing that allows a child to openly share his or her concerns
with the court (see Matter of Sellen v Wright, 229 AD2d 680, 681-
682 [1996]). Going forward, absent a defined reason for calling
the child as a fact witness, we discourage this practice.

     McCarthy, J.P., Egan Jr. and Devine, JJ., concur.
                        -6-                  520293

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
