Decisions of Interest

Court Opens Child's Confidential Testimony to Parents in Some Proceedings

A panel of the Appellate Division, Third Department, has found that when a parent is accused of child abuse or neglect, he or she may be entitled to review records of the child's “confidential” testimony in the matter. Matter of Justin CC, 506502/507154. In re Justin CC, — N.Y.S.2d —-, 2010 WL 2606032 (3d Dept. 7/1/10) (Mercure, J.P., Peters, Spain, Rose and Kavanagh, JJ.).

The respondent father and mother in this action have three minor sons. The mother also has a daughter from a prior relationship, born in 1992. Petitioner Chemung County Department of Social Services commenced neglect and abuse proceedings against them, alleging that the respondents subjected the children to excessive corporal punishment and that the father had sexually abused the daughter on at least 20 occasions.

Citing for authority to the Third Department's decision in Matter of Randy A., 248 AD2d 838 (1998), 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. (In Matter of Lincoln v. Lincoln, 24 NY2d 270 (1969), the Court of Appeals held that a court deciding custody issues may conduct a confidential interview with the child ' outside the presence of the parents and their attorneys ' in order to better understand the best interest of the child.) The parties did not object, so the modified Lincoln hearing was held. The respondents were not present during the daughter's testimony, but their attorneys were present and were permitted to fully 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 the transcript was sent to the Third Department for appellate purposes.

Appellate counsel for the father moved for an order unsealing the transcript of the daughter's testimony, asserting that, since this was not a custody proceeding and all counsel were present during the daughter's testimony and permitted to cross-examine her, the daughter's testimony was not in fact obtained during the course of a true Lincoln hearing. Counsel claimed, consequently, that the daughter's testimony was not confidential. The attorney also argued that her inability to reference and make fact-specific arguments based upon that testimony would hamper her ability to adequately represent the father on appeal.

The appellate court found that although there were sound reasons for maintaining the confidentiality of a child's testimony in a custody proceeding, no such protection was warranted in the fact-finding stage of a neglect/abuse proceeding. In fact, maintaining the confidentiality of the testimony here would have deprived the respondents of their due process rights on appeal. Wrote Justice Karen K. Peters for the court: “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 Ct Act article 10 proceeding is whether the petitioner has proved by a preponderance of the evidence that the child is neglected and/or abused and that the respondent 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 respondent.” Justice Peters want on to state that to “drape such testimony with the veil of confidentiality, thus precluding appellate counsel from both referring to that testimony by specific reference and making legal arguments based upon it, raises fundamental due process concerns for the purposes of an appeal. Furthermore, if such testimony were to remain confidential, appellate counsel's ability to effectively represent his or her client would be even more constrained than that of trial counsel.” Therefore, the court held that when a child provides testimony during the fact-finding stage of a Family Court Act article 10 proceeding, outside the presence of the respondent but with all counsel present and afforded a full opportunity to cross-examine the child, the child's testimony may not be sealed.

When Both Parties' Testimony Is Equally Believable, Plaintiff Loses

Finding that a defendant wife's testimony that she had been willing to engage in sexual intercourse with her husband was as credible as her husband's testimony claiming she had refused, the court declined to grant a divorce on the grounds of constructive abandonment. J.S. v. D.S., Slip Copy, 27 Misc.3d 1234 (A (Sup. Ct., Nassau Cty. 5/24/10) (Bruno, J.).

Plaintiff, J.S., and defendant, D.S., were married in 1989. In November 2009 the husband sued for divorce, claiming he and his wife had not sexually cohabited with each other since September 1998, that his wife had refused sex despite his repeated requests, and that her unwillingness to engage in sexual relations with him was not prompted by any conduct on his part. He also testified that he left the marital home in the summer of 2001. The wife testified that she did not refuse to have sex with her husband, and that they had had an active sexual relationship up until the time when the husband left the marital residence. She further testified that on one occasion, after they had had sexual relations, the husband fell asleep, giving her the opportunity to use his cell phone to retrieve the number of a woman she suspected of being his paramour. She called the woman and had an extensive conversation with her. Soon after the husband awoke and found out his wife had spoken to the woman, he moved out of the marital residence. She said that she did not want a divorce and was willing to take her husband back and resume having sexual relations with him.

The court noted that a party seeking divorce has the burden of demonstrating marital misconduct, and a plaintiff seeking divorce for construction abandonment must show that the defendant's refusal to engage in marital relations is unjustified, willful and continuous. Diemer v. Diemer, 8 NY2d 206 (1960). Here, the testimony of both parties seemed credible to the court, though they each testified to a different set of facts regarding the same events. The court therefore dismissed the action, finding that the competing testimony of the parties was “a wash” and that the plaintiff therefore had “not established a fair preponderance of the credible evidence that there was a constructive abandonment here.”

Court Opens Child's Confidential Testimony to Parents in Some Proceedings

A panel of the Appellate Division, Third Department, has found that when a parent is accused of child abuse or neglect, he or she may be entitled to review records of the child's “confidential” testimony in the matter. Matter of Justin CC, 506502/507154. In re Justin CC, — N.Y.S.2d —-, 2010 WL 2606032 (3d Dept. 7/1/10) (Mercure, J.P., Peters, Spain, Rose and Kavanagh, JJ.).

The respondent father and mother in this action have three minor sons. The mother also has a daughter from a prior relationship, born in 1992. Petitioner Chemung County Department of Social Services commenced neglect and abuse proceedings against them, alleging that the respondents subjected the children to excessive corporal punishment and that the father had sexually abused the daughter on at least 20 occasions.

Citing for authority to the Third Department's decision in Matter of Randy A. , 248 AD2d 838 (1998), 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. (In Matter of Lincoln v. Lincoln , 24 NY2d 270 (1969), the Court of Appeals held that a court deciding custody issues may conduct a confidential interview with the child ' outside the presence of the parents and their attorneys ' in order to better understand the best interest of the child.) The parties did not object, so the modified Lincoln hearing was held. The respondents were not present during the daughter's testimony, but their attorneys were present and were permitted to fully 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 the transcript was sent to the Third Department for appellate purposes.

Appellate counsel for the father moved for an order unsealing the transcript of the daughter's testimony, asserting that, since this was not a custody proceeding and all counsel were present during the daughter's testimony and permitted to cross-examine her, the daughter's testimony was not in fact obtained during the course of a true Lincoln hearing. Counsel claimed, consequently, that the daughter's testimony was not confidential. The attorney also argued that her inability to reference and make fact-specific arguments based upon that testimony would hamper her ability to adequately represent the father on appeal.

The appellate court found that although there were sound reasons for maintaining the confidentiality of a child's testimony in a custody proceeding, no such protection was warranted in the fact-finding stage of a neglect/abuse proceeding. In fact, maintaining the confidentiality of the testimony here would have deprived the respondents of their due process rights on appeal. Wrote Justice Karen K. Peters for the court: “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 Ct Act article 10 proceeding is whether the petitioner has proved by a preponderance of the evidence that the child is neglected and/or abused and that the respondent 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 respondent.” Justice Peters want on to state that to “drape such testimony with the veil of confidentiality, thus precluding appellate counsel from both referring to that testimony by specific reference and making legal arguments based upon it, raises fundamental due process concerns for the purposes of an appeal. Furthermore, if such testimony were to remain confidential, appellate counsel's ability to effectively represent his or her client would be even more constrained than that of trial counsel.” Therefore, the court held that when a child provides testimony during the fact-finding stage of a Family Court Act article 10 proceeding, outside the presence of the respondent but with all counsel present and afforded a full opportunity to cross-examine the child, the child's testimony may not be sealed.

When Both Parties' Testimony Is Equally Believable, Plaintiff Loses

Finding that a defendant wife's testimony that she had been willing to engage in sexual intercourse with her husband was as credible as her husband's testimony claiming she had refused, the court declined to grant a divorce on the grounds of constructive abandonment. J.S. v. D.S. , Slip Copy, 27 Misc.3d 1234 (A (Sup. Ct., Nassau Cty. 5/24/10) (Bruno, J.).

Plaintiff, J.S., and defendant, D.S., were married in 1989. In November 2009 the husband sued for divorce, claiming he and his wife had not sexually cohabited with each other since September 1998, that his wife had refused sex despite his repeated requests, and that her unwillingness to engage in sexual relations with him was not prompted by any conduct on his part. He also testified that he left the marital home in the summer of 2001. The wife testified that she did not refuse to have sex with her husband, and that they had had an active sexual relationship up until the time when the husband left the marital residence. She further testified that on one occasion, after they had had sexual relations, the husband fell asleep, giving her the opportunity to use his cell phone to retrieve the number of a woman she suspected of being his paramour. She called the woman and had an extensive conversation with her. Soon after the husband awoke and found out his wife had spoken to the woman, he moved out of the marital residence. She said that she did not want a divorce and was willing to take her husband back and resume having sexual relations with him.

The court noted that a party seeking divorce has the burden of demonstrating marital misconduct, and a plaintiff seeking divorce for construction abandonment must show that the defendant's refusal to engage in marital relations is unjustified, willful and continuous. Diemer v. Diemer , 8 NY2d 206 (1960). Here, the testimony of both parties seemed credible to the court, though they each testified to a different set of facts regarding the same events. The court therefore dismissed the action, finding that the competing testimony of the parties was “a wash” and that the plaintiff therefore had “not established a fair preponderance of the credible evidence that there was a constructive abandonment here.”