In a custody dispute, judges do not wish to place a child in the position of having to openly “choose” between parents.
However, where a child’s testimony is necessary, the child may be questioned by the judge with the child’s attorney present but in the absence of the child’s parents and their attorneys. The child’s responses to the judge’s questions are absolutely confidential.
The appearance of the child before the judge is called a “Lincoln Hearing” (Lincoln being the name of a litigant in a custody case which was ultimately decided by New York’s highest court, the Court of Appeals). In a Lincoln Hearing, the child is permitted to explain the reasons for a custodial preference, without jeopardizing his/her relationship with either parent. Through this procedure, the child’s concerns or preferences are discussed in confidence and the child need not openly “choose” between Mom and Dad.
A stenographer is present during the Judge’s questioning of the child. If there is an appeal, the transcript of this in camera hearing is forwarded to the Appellate Division, under seal. The transcript of the child’s testimony will not be revealed to the parents or their attorneys.
Although the Lincoln Hearing presents the judge with the opportunity to seek the “truth”, the child’s attorney may oppose the conduct of the hearing (which is not mandatory). In addition, the parents retain the right to present their evidence (including expert testimony) in open court. Moreover, the trial judge will consider the accuracy of the child’s in camera statements during the course of the hearing, in light of the evidence presented in open court.