        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

227
CAF 14-02001
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


IN THE MATTER OF YVETTE NOBLE, PETITIONER-APPELLANT,

                    V                               MEMORANDUM AND ORDER

LEON C. BROWN, SR., RESPONDENT-RESPONDENT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR PETITIONER-APPELLANT.

SUSAN B. MARRIS, ATTORNEY FOR THE CHILD, MANLIUS.


     Appeal from an order of the Family Court, Onondaga County
(Salvatore Pavone, R.), entered October 17, 2014 in a proceeding
pursuant to Family Court Act article 6. The order dismissed the
amended petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the amended petition is
reinstated, and the matter is remitted to Family Court, Onondaga
County, for further proceedings in accordance with the following
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 AD3d 1207,
1209-1210; Matter of Minner v Minner, 56 AD3d 1198, 1199; cf. Matter
of Walters v Francisco, 63 AD3d 1610, 1611; see generally Matter of
Lincoln v Lincoln, 24 NY2d 270, 271-274). Such a hearing may be
conducted “during or after fact-finding” (Matter of Jessica B. v
Robert B., 104 AD3d 1077, 1078 n), and may be used to support an
allegation of a change in circumstances (see Matter of Nelson v
Morales, 104 AD3d 1299, 1300). The decision whether to conduct such a
hearing is discretionary, but it is “often the preferable course” to
conduct one (Yeager, 110 AD3d at 1209; see Minner, 56 AD3d at 1199).

     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
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                                                         CAF 14-02001

Child did not oppose a Lincoln hearing, and many of the changed
circumstances alleged by the mother concerned matters within the
personal knowledge of the child but not that of the mother or her
witnesses. Under those circumstances, we conclude that a Lincoln
hearing would have provided the court with “ ‘significant pieces of
information [it needed] to make the soundest possible decision’ ”
(Walters, 63 AD3d at 1611, quoting Lincoln, 24 NY2d at 272; see
Yeager, 110 AD3d at 1209-1211; Matter of Stramezzi v Scozzari, 106
AD3d 748, 749-750; Matter of Oddo v Collins, 100 AD3d 1512, 1512-
1513). We therefore reverse the order and remit the matter to Family
Court for further proceedings and a new determination on the mother’s
amended petition (see Minner, 56 AD3d at 1199; see generally Oddo, 100
AD3d at 1512-1513; Matter of Flood v Flood, 63 AD3d 1197, 1199), and
“[w]e take no position as to what the new determination should be”
(Stramezzi, 106 AD3d at 750).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
