NEW YORK DIVORCE AND FAMILY LAW: CONFIDENTIALITY OF CHILD'S TESTIMONY

In certain custody cases the Judge wishes to speak to the subject child, the child the parents are fighting for custody of, in private in their chambers. This sort of private meeting between the Judge and the child, and in New York the appointed attorney for the child, is legally referred to as a Lincoln hearing. Historically, testimony taken from a child during a child custody case is afforded protections of confidentiality under Article 6 of the Family Court Act.

The meeting between the Judge and the child is referred to as a Lincoln hearing because the confidentiality of such a hearing was established in the matter of, Lincoln v Lincoln (24 NY2d 270 [1969]), where the Court of Appeals held that a court deciding the issue of custody has the right to conduct a confidential interview with the child, outside the presence of the parents and their attorneys, because its first responsibility is and must be the welfare and interests of the child (id. at 272). In so concluding, the Court emphasized the importance of protecting the child from having to choose openly between parents or publicly relate his or her difficulties with them (id.). Indeed, as this Court noted in upholding a Family Court's refusal — in a custody proceeding — to disclose the contents of a Lincoln hearing, "[c]hildren must be protected from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships[, and t]his protection is achieved by sealing the transcript of the in camera Lincoln hearing (Sellen v Wright, 229 AD2d 680, 681-682 [1996] [emphasis added, internal citation omitted]).

Recently though, this right of confidentiality during a Lincoln Hearing was challenged. However, it was not challenged during a custody matter, but during an Article 10 proceeding, which deals with abuse and neglect of a child. In The Matter Of Justin CC, 2010 NY Slip Op 05817, the attorney for the daughter requested that a "modified Lincoln hearing" be held with the daughter in the presence of all counsel, but outside the presence of respondents (parents). During the Lincoln Hearing, the daughter provided sworn testimony; respondents were excluded but their attorneys were permitted to be present and afforded a full opportunity to cross-examine her. At the conclusion of the fact-finding hearing, Family Court found that the father abused the daughter and derivatively abused the sons, and that both the mother and the father neglected all four children. The transcript of the daughter's testimony was marked confidential by Family Court and was forwarded under seal to this Court for purposes of this appeal.

On Appeal, the father’s appellate attorney made a motion for the transcript to be unsealed so he could properly refer to it and so it is part of the record. The Appellate Court agreed with the father’s attorney and decided that although there are sound reasons for maintaining confidentiality of a child's testimony in a custody proceeding, there is no basis for providing such a protection at the fact-finding stage of a neglect/abuse proceeding. While the issue at the fact-finding stage of a custody proceeding is what custodial arrangement is in the best interest of the child, the issue at the fact-finding stage of a Family Court Act article 10 proceeding (abuse/neglect case) is whether the agency has proved by a preponderance of the evidence that the child is neglected and/or abused and that the parent is responsible for the neglect and/or abuse. Most significantly, unlike a custody proceeding, the position of the allegedly neglected or abused child in an article 10 proceeding may be adverse to the parent and the parent should therefore be afforded a full opportunity to refer to that testimony by specific reference and make legal arguments based upon it, raising the fundamental due process concerns of right to cross examination for the purposes of an appeal.

Therefore, a child and an attorney for the child must be mindful that even though the parents are not present during said modified Lincoln Hearing, the testimony of a child during a neglect and abuse case will be open to review by the parents and their attorneys. The Court, in my opinion, correctly decided that the worst that can happen in a child custody case is one parent loses custody because of the child’s position regarding which parent they choose to live with is adverse to that parent. However, in an abuse and neglect case the parents may lose parental rights over the child, or be prosecuted by criminal court, or any number of extreme consequences and should be able to properly defend them selves based on all testimony given, even that of the child.

Any opinions, questions or comments are always welcome and appreciated. I look forward to hearing from you if you found this interesting!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com