Family Court Discretion to Decline a Lincoln Hearing Where Testimony May Negatively Impact the Child

Introduction

In Matter of Cullen NN. v Patrice OO. (2026 NY Slip Op 02900 [3d Dept May 7, 2026]), the Appellate Division, Third Department affirmed a Family Court order modifying a 2017 consent custody arrangement. The parents shared joint legal custody, with the mother holding primary physical custody. In 2024, the father—residing in Boston, Massachusetts—filed modification petitions seeking primary physical custody, a change that would effectively require the child (born 2011) to relocate.

The appeal presented two central issues: (1) whether the father established a sufficient change in circumstances and that modification served the child’s best interests (including relocation considerations), and (2) whether Family Court committed reversible error by declining to conduct a Lincoln hearing to ascertain the child’s wishes.

Summary of the Opinion

The Third Department held that Family Court had a sound and substantial basis to find (i) a change in circumstances based on escalating domestic conflict and violence between mother and child, school issues, and the mother’s increasing difficulty managing the child, and (ii) that awarding primary physical custody to the father—despite relocation—was in the child’s best interests because the father offered a more structured and supportive environment and was more likely to foster the child’s relationship with the noncustodial parent.

On the Lincoln hearing issue, the court reaffirmed that a Lincoln hearing is “preferred” but not mandatory, and that it lies within Family Court’s discretion to decline such a hearing where it may have a potential negative impact on the child. Given that the attorney for the child reported the child’s desire not to testify and explained the child’s feelings and preference, the court found no error in proceeding without a Lincoln hearing under these circumstances.

Analysis

Precedents Cited

1) Modification framework: change in circumstances + best interests

  • Matter of Ashley UU. v Ned VV., 235 AD3d 1200 (3d Dept 2025) and Matter of Christine EE. v David FF., 235 AD3d 1156 (3d Dept 2025): cited for the two-step standard—first, a change in circumstances; second, best interests. These cases anchor the threshold gatekeeping function of “change in circumstances” before a court reopens an established custody arrangement.
  • Matter of Sherab X. v Michelle Y., 244 AD3d 1532 (3d Dept 2025) and Matter of Michelle EE. v John EE., 235 AD3d 1121 (3d Dept 2025): cited for the multi-factor best-interests analysis (home environment, stability, willingness to foster the other parent relationship, past performance/fitness, and ability to meet developmental needs). These precedents support the court’s holistic, non-formulaic weighing.

2) Relocation as part of best interests in a modification posture

  • Matter of Alicia SS. v Andrew RR., 224 AD3d 1207 (3d Dept 2024) and Matter of Jesse FF. v Amber GG., 222 AD3d 1254 (3d Dept 2023): cited for the proposition that where modification “practically” results in relocation, the relocation effect must be evaluated within the overarching best-interests framework—not as a separate, rigid test. This guided the court’s willingness to affirm relocation where the record showed it served safety, structure, and the child’s developmental needs.

3) Appellate deference to Family Court’s fact-finding and credibility

  • Matter of Kyle I. v Kandice K., 232 AD3d 1074 (3d Dept 2024) and Matter of Matthew L. v Sierra N., 229 AD3d 866 (3d Dept 2024), lv denied 42 NY3d 907 (2024): cited for the “sound and substantial basis” standard and the high deference owed to Family Court’s credibility determinations. This deference was pivotal because the custody decision turned heavily on competing narratives about home conditions, parental conduct, and each parent’s ability to manage the child’s escalating behaviors.

4) Change in circumstances proven by violence/escalation and breakdown of custodial arrangement

  • Matter of William EE. v Christy FF., 151 AD3d 1196 (3d Dept 2017); Matter of Passero v Giordano, 53 AD3d 802 (3d Dept 2008); and Matter of Colwell v Parks, 44 AD3d 1134 (3d Dept 2007): cited to support that domestic violence involving a child and the caretaker’s growing inability to manage the child may constitute a change in circumstances. These cases collectively inform the court’s conclusion that repeated police/CPS involvement and violent altercations represent more than ordinary family conflict—they signal a material shift undermining the prior custodial status quo.

5) Best-interests determinations supported by record evidence

  • Matter of Jennifer HH. v Alavanh II., 243 AD3d 1170 (3d Dept 2025); Matter of Janaye D. v Zachary C., 240 AD3d 961 (3d Dept 2025), lv denied 44 NY3d 910 (2026); Matter of Tavernia v Bouvia, 12 AD3d 960 (3d Dept 2004): cited as comparators demonstrating that where Family Court’s weighing of stability, structure, parental insight, and relationship-fostering is grounded in credible testimony, appellate courts will not second-guess the chosen custodial arrangement.

6) Lincoln hearing discretion and “potential negative impact” exception

  • Matter of Derek KK. v Jennifer KK., 196 AD3d 765 (3d Dept 2021): cited for the proposition that a Lincoln hearing is preferred but not mandatory.
  • Matter of Mary Ellen H. v Joseph H., 193 AD3d 1275 (3d Dept 2021): cited for the rule that the decision whether to hold a Lincoln hearing is discretionary and such a hearing may be declined if it may have a potential negative impact on the child. This precedent is the court’s principal doctrinal support for affirmance on the Lincoln issue.
  • Matter of Daniel XX. v Heather WW., 180 AD3d 1166 (3d Dept 2020) and Matter of Brandon E. v Kim E., 167 AD3d 1293 (3d Dept 2018): cited to confirm that proceeding without a Lincoln hearing can be permissible where the record otherwise sufficiently addresses the child’s wishes and welfare concerns.
  • compare Matter of Samantha WW. v Malek XX., 217 AD3d 1081 (3d Dept 2023): cited as a contrast case, signaling that there are factual scenarios where failure to conduct a Lincoln hearing can be problematic—reinforcing that the inquiry is context-specific rather than categorical.
  • Footnote context: Matter of Linda UU. v Dana VV., 212 AD3d 906 (3d Dept 2023), lvs denied 39 NY3d 913 (2023), 39 NY3d 913 (2023): cited to emphasize that the attorney for the child’s position is “not determinative.” This supports the court’s view that counsel’s advocacy (even when reasoned) does not replace the court’s independent best-interests obligation.

Legal Reasoning

1) Change in circumstances: escalation beyond normal parenting stress

The court treated the mother-child relationship breakdown as legally significant because the evidence involved repeated police/CPS contact, mutual violence, school truancy, and the mother’s testimony characterizing the child as physically adult-like and “unmanageable.” The court accepted that this constellation of facts showed the prior custodial arrangement was no longer functioning as intended, satisfying the modification threshold.

2) Best interests: structure, safety, educational support, and relationship-fostering

Family Court credited the father’s proof that he could provide concrete stabilizing supports (separate bedroom, reliable communications, and a secured private-school placement with free tuition) and that the child’s functioning improved during extended time with paternal family. The record also supported concerns about the mother’s home conditions, conflict management, and judgment (including physical reprimands and reliance on an insufficiently identified neighbor for overnight respite care).

Critically, the court framed the mother’s minimization of physical altercations as “normal adolescent behavior” as reflecting a lack of insight into the child’s “dangerous path” and the seriousness of “out of control behavior.” That lack of insight—combined with the repeated escalation— weighed against maintaining primary physical custody with the mother.

3) Relocation: not dispositive where the record shows welfare-driven necessity

The child’s relocation to Boston was acknowledged as a significant disruption (moving away from the primary home of upbringing). Yet the court treated relocation as one consideration within best interests, and found that the need for stability and improved behavioral trajectory could justify the move. The father’s capacity to support schooling and impose consistent structure served as the functional rationale for why relocation would advance—not undermine—the child’s welfare.

4) Lincoln hearing: preference, discretion, and protecting the child from harm

The opinion’s most practice-relevant point is its treatment of the Lincoln hearing request. The court restated a clear operational rule: even though a Lincoln hearing is ordinarily the “preferred method” for ascertaining a child’s wishes, it is not mandatory; Family Court may decline to conduct it where it may have a potential negative impact on the child.

Here, the attorney for the child reported that the child did not want to testify, loved both parents, did not want to choose, and if forced would prefer to live with the mother. The appellate court accepted that this reporting—paired with the child’s expressed desire not to testify— could justify dispensing with the Lincoln hearing, even though “best practice” would typically favor conducting one for a 13-year-old.

Impact

  • Reinforced discretion to avoid child participation where harmful: The decision strengthens the practical legitimacy of declining a Lincoln hearing when the record shows the child does not want to testify and forcing testimony may harm the child emotionally (e.g., making the child “choose”).
  • Attorney-for-the-child reporting can be sufficient in the right circumstances: While not a categorical substitute, the decision indicates that counsel’s on-the-record representation of the child’s position and emotional conflict can help support a discretionary choice to forego a Lincoln hearing—especially when the child’s stated preference is to avoid the process.
  • Behavioral escalation can drive relocation-based modification: The opinion signals that where a custodial home has become a site of repeated violent conflict and school disruption, Family Court may conclude that relocation to the other parent’s structured environment is consistent with best interests, even when it uproots the child from a long-standing community.
  • Credibility remains decisive: The affirmance underscores that inconsistent/evasive testimony can be outcome-determinative; appellate review will rarely disturb a custody award where Family Court explicitly explains credibility findings and ties them to the best-interests factors.

Complex Concepts Simplified

  • “Change in circumstances”: Before changing an existing custody order, the court needs a meaningful reason showing the old arrangement no longer fits reality—such as escalating conflict, safety issues, or a breakdown in caregiving capacity.
  • “Best interests of the child”: A multi-factor, child-centered assessment (not a single rule). Courts weigh stability, safety, home life, parental judgment, schooling, emotional support, and which parent will encourage a healthy relationship with the other parent.
  • Relocation in a modification case: If changing custody effectively moves the child to another place, the move is evaluated as part of best interests (how it affects stability, family bonds, schooling, and welfare), rather than automatically barring the change.
  • Lincoln hearing: A private, in-camera interview of the child by the judge to learn the child’s wishes without exposing the child to open-court pressure. It is preferred, but not required, particularly where the interview itself could harm the child.
  • “Sound and substantial basis in the record”: The appellate standard of review in custody matters: if Family Court’s decision is reasonably supported by evidence and credibility findings, the appellate court will usually affirm even if another outcome could also have been plausible.

Conclusion

Matter of Cullen NN. v Patrice OO. affirms a relocation-effectuating custody modification grounded in escalating violence and dysfunction, emphasizing structure, safety, and parental insight as core best-interests drivers. Its most notable doctrinal contribution is its clear reaffirmation that a Lincoln hearing—though preferred—is not mandatory, and that Family Court acts within its discretion in declining to conduct one where the child does not wish to testify and where testimony could have a potential negative impact on the child. In practice, the decision highlights the importance of a well-developed record on the child’s emotional burden, the role (but limits) of the attorney for the child’s representations, and careful, explicit credibility findings to withstand appellate review.