Minner v. Minner

56 A.D.2d 1198, 867 N.Y.S.2d 601

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2008
• Status: Published

Opinion

Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.), entered August 8, 2007 in a proceeding pursuant to Family Court Act article 6. The order, insofar as appealed from, denied the amended petition for modification of an order of custody.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Cattaraugus County, for further proceedings in accordance with the following memorandum: We conclude that, in denying the amended petition pursuant to which petitioner mother sought permission for the parties’ children to relocate with her to Texas, the Referee erred in failing to ascertain whether the children wished to relocate to Texas with their mother, who was their primary physical custodian. Although the Law Guardian offered the Referee the opportunity to conduct an in camera interview with the children, the Referee declined to do so. We of course acknowledge that interviews with children involved in relocation disputes are not mandatory (see Mascoli v Mascoli, 132 AD2d 653 [1987]), and that the decision whether to interview the children is a matter of discretion for the trial court (see Matter of Lincoln v Lincoln, 24 NY2d 270, 274 [1969]). We conclude under the facts of this case, however, that “the better practice would [have been] for the [Referee] to conduct an in-camera interview of the child[ren]” because that information would have been helpful in determining the amended petition, particularly in view of the fact that the children were 11 and 13 years old at the time of the hearing (Matter of Brice v Mitchell, 184 AD2d 1008 [1992]; see Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117 [1990]; cf. Mascoli, 132 AD2d at 653). “While the express wishes of children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful” (Koppenhoefer, 159 AD2d at 117). We therefore reverse the order insofar as appealed from and remit the matter to Family Court for a hearing and new determination on the amended petition. Present — Hurlbutt, J.E, Centra, Fahey, Pine and Gorski, JJ.