Matter of Kalam EE. v Amber EE.
Attorneys and Parties
Brief Summary
Family law custody and visitation—modification and enforcement (civil contempt) under Family Ct Act article 6 [governs custody and visitation proceedings]; whether Family Court erred by dismissing at close of petitioner’s case for lack of corroboration and canceling a scheduled Lincoln hearing.
Family Court granted the mother’s motion to dismiss at the close of the father’s direct case for lack of corroboration, dismissed both the modification and enforcement petitions, and sua sponte canceled the scheduled Lincoln hearing.
The dismissal order and cancellation of the Lincoln hearing were reversed; the matter was remitted for a Lincoln hearing and any appropriate further proceedings, with direction that a different attorney for the children be assigned.
On a motion to dismiss, the court had to accept the father’s proof as true and give every favorable inference. The court failed to do so and abused its discretion in canceling the Lincoln hearing, which could itself have provided corroboration for the children’s out-of-court statements; only a relatively low degree of corroboration is required.
Background
The parties share two children (born 2014, 2017). A December 2022 consent order granted joint legal custody with the mother having primary physical custody and the father scheduled parenting time, and included conditions: no physical discipline, no excessive alcohol use around the children, no contact between the children and the mother’s boyfriend, and communication through the TalkingParents app. In May 2023, the father filed a modification petition for additional parenting time and an enforcement petition alleging the mother used physical discipline and drank to excess in the children’s presence. At the fact-finding hearing, after the father’s direct testimony—recounting the children’s statements and behavioral changes—the mother moved to dismiss; the court granted the motion and canceled the next-day Lincoln hearing.
Lower Court Decision
Family Court (Tioga County) dismissed the father’s modification and enforcement petitions at the close of his case, finding no corroboration of the children’s out-of-court statements and allegations of excessive drinking, and sua sponte canceled the scheduled Lincoln hearing.
Appellate Division Reversal
The Appellate Division held the court misapplied the motion-to-dismiss standard by not taking the father’s evidence as true and giving him all favorable inferences. It further held that canceling the Lincoln hearing was an abuse of discretion because information from the children during such a hearing may corroborate other evidence, and only a relatively low level of corroboration is required for children’s out-of-court statements in Family Ct Act article 6 [governs custody and visitation proceedings] matters. The court reversed and remitted for a Lincoln hearing and any further appropriate proceedings, directed assignment of a different attorney for the children, and found the ineffective-assistance claim academic.
Legal Significance
Reaffirms that on a mid-trial dismissal motion, Family Court must credit the petitioner’s proof and draw every reasonable inference in the petitioner’s favor; underscores that a Lincoln hearing can provide corroboration for children’s out-of-court statements in custody/enforcement proceedings and should not be canceled where the children can participate; and highlights the low corroboration threshold for such statements.
Do not dismiss custody or enforcement petitions for lack of corroboration without first allowing a Lincoln hearing that could itself supply corroboration; apply the favorable-inference standard on a motion to dismiss.