Opinion
2012-11-16
In the Matter of Frank ODDO, Petitioner–Respondent, v. Nathania COLLINS, Respondent–Appellant.
Leonard G. Tilney, Jr., Lockport, for Respondent–Appellant. Thomas J. Caserta, Jr., Niagara Falls, for Petitioner–Respondent.
Leonard G. Tilney, Jr., Lockport, for Respondent–Appellant. Thomas J. Caserta, Jr., Niagara Falls, for Petitioner–Respondent.
Angela Stamm–Philipps, Attorney for the Child, Lockport, for Avianna O.
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
Respondent mother appeals from an order modifying the parties' existing custody arrangement by, inter alia, transferring residential custody of the child from the mother to petitioner father. In the absence of an in camera hearing with the child ( see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 271–272, 299 N.Y.S.2d 842, 247 N.E.2d 659), we are unable to determine whether a change in custody is in the best interests of the child. We therefore remit the matter to Supreme Court to give the court the opportunity, at a minimum, to conduct a Lincoln hearing with the child, who is now old enough to provide insight as to her interaction with each of her parents in the home ( see Matter of Tamara FF. v. John FF., 75 A.D.3d 688, 690, 903 N.Y.S.2d 827;Matter of Flood v. Flood, 63 A.D.3d 1197, 1199, 880 N.Y.S.2d 748). We note that the order entered June 15, 2011 remains in effect pending the court's order upon further proceedings ( see Matter of Matthews v. Matthews, 56 A.D.3d 1268, 1269, 869 N.Y.S.2d 297).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Niagara County, for further proceedings.