                            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
