Walters v. Francisco, 63 A.D.3d 1610 (N.Y. App. Div. 2009). · Go Syfert
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Walters v. Francisco, 63 A.D.3d 1610 (N.Y. App. Div. 2009). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases · …afford the mother every favorable inference that could be reasonably drawn ≈ altered Topic ↗
cited 3× by 3 distinct cases · …significant pieces of information it needed to make the soundest possible decision ≈ altered Topic ↗
cited 3× by 3 distinct cases · …where, as here, 'a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner's proof, the court must accept as true the petitioner's proof and afford the petitioner every favorable inference that could be reasonably drawn therefrom at p. 1611 ✓ Topic ↗
22 citation events (22 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Brady J.S. v. Darla A.B.
N.Y. App. Div. · 2022 · confidence medium
"In determining whether such a hearing is warranted, the court must determine whether the in camera testimony of the child 'will on the whole benefit the child by obtaining for the Judge significant pieces of information he [or she] needs to make the soundest possible decision' " ( Matter of Walters v Francisco , 63 AD3d 1610, 1611 [4th Dept 2009], quoting [*3]Matter of Lincoln v Lincoln , 24 NY2d 270, 272 [1969]; see Bielli v Bielli , 60 AD3d 1487 , 1487 [4th Dept 2009], lv dismissed 12 NY3d 896 [2009]).
discussed Cited as authority (rule) Matter of Cooley v. Roloson
N.Y. App. Div. · 2022 · confidence medium
Where, as here, " 'a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner's proof, the court must accept as true the petitioner's proof and afford the petitioner every favorable inference that reasonably could be drawn therefrom' " ( Matter of Walters v Francisco , 63 AD3d 1610, 1611 [4th Dept 2009]).
discussed Cited as authority (rule) Matter of Muriel v. Muriel
N.Y. App. Div. · 2020 · confidence medium
In addition, the in camera testimony of a child may " on the whole benefit the child by obtaining for the [court] significant pieces of information [it] needs to make the soundest possible decision' " ( Matter of Walters v Francisco , 63 AD3d 1610, 1611 [4th Dept 2009], quoting Matter of Lincoln v Lincoln , 24 NY2d 270, 272 [1969]).
discussed Cited as authority (rule) Noble v. Brown
N.Y. App. Div. · 2016 · signal: cf. · confidence medium
We conclude that the court abused its discretion in denying the mother’s request that it conduct a Lincoln hearing before ruling on the father’s motion (see Matter of Yeager v Yeager, 110 AD3d 1207, 1209-1210 [2013]; Matter of Minner v Minner, 56 AD3d 1198 , 1199 [2008]; cf. Matter of Walters v Francisco, 63 AD3d 1610, 1611 [2009]; see generally Matter of Lincoln v Lincoln, 24 NY2d 270, 271-274 [1969]).
discussed Cited as authority (rule) Noble v. Brown
N.Y. App. Div. · 2016 · signal: cf. · confidence medium
We conclude that the court abused its discretion in denying the mother’s request that it conduct a Lincoln hearing before ruling on the father’s motion (see Matter of Yeager v Yeager, 110 AD3d 1207, 1209-1210 [2013]; Matter of Minner v Minner, 56 AD3d 1198 , 1199 [2008]; cf. Matter of Walters v Francisco, 63 AD3d 1610, 1611 [2009]; see generally Matter of Lincoln v Lincoln, 24 NY2d 270, 271-274 [1969]).
discussed Cited as authority (rule) MCCLINTON, JAIMYCE L. v. KIRKMAN, BARSUN U.
N.Y. App. Div. · 2015 · confidence medium
“Where, as here, ‘a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof and afford the petitioner every favorable inference that reasonably could be drawn therefrom’ ” (Matter of Walters v Francisco, 63 AD3d 1610, 1611 [2009]; see Matter of Gelster v Burns, 122 AD3d 1294 , 1295 [2014], lv denied 24 NY3d 915 [2015]).
discussed Cited as authority (rule) Sonya Gelster v. Burns
N.Y. App. Div. · 2014 · confidence medium
“Where, as here, ‘a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof and afford the petitioner every favorable inference that could be reasonably drawn therefrom’ ” (Matter of Walters v Francisco, 63 AD3d 1610, 1611 [2009]).
discussed Cited as authority (rule) Sonya Gelster v. Burns
N.Y. App. Div. · 2014 · confidence medium
“Where, as here, ‘a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof and afford the petitioner every favorable inference that could be reasonably drawn therefrom’ ” (Matter of Walters v Francisco, 63 AD3d 1610, 1611 [2009]).
discussed Cited as authority (rule) Wellington v. Riccardo
N.Y. App. Div. · 2010 · confidence medium
The mother has not raised any issues with respect to that part of the order dismissing the petition insofar as it sought termination of the father’s Wednesday visitation, and thus she is deemed to have abandoned any such issues (see Matter of Walters v Francisco, 63 AD3d 1610, 1611 [2009]; Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).
discussed Cited "see" Matter of Montalbano v. Babcock
N.Y. App. Div. · 2017 · signal: see · confidence high
In any event, we conclude that the court did not abuse its discretion in failing to conduct such a hearing, inasmuch as the Attorney for the Child provided the court with sufficient information concerning the child’s wishes, i.e., that the child was in favor of the mother’s petition (see Matter of Pfalzer v Pfalzer, 150 AD3d 1705, 1706 [4th Dept 2017], lv denied 29 NY3d 918 [2017]; cf. Matter of Noble v Brown, 137 AD3d 1714, 1714-1715 [4th Dept 2016]; see generally Matter of Walters v Francisco, 63 AD3d 1610, 1611 [4th Dept 2009]).
discussed Cited "see" Sloma v. Sloma
N.Y. App. Div. · 2017 · signal: see · confidence high
In any event, considering the child’s young age as well as the testimony that she was being coached on what to say to the court, an in camera hearing with the child would not be helpful in determining the child’s preferences (see Matter of Thillman v Mayer, 85 AD3d 1624, 1625 [2011]; see generally Matter of Walters v Francisco, 63 AD3d 1610, 1611 [2009]).
discussed Cited "see" Sloma v. Sloma
N.Y. App. Div. · 2017 · signal: see · confidence high
In any event, considering the child’s young age as well as the testimony that she was being coached on what to say to the court, an in camera hearing with the child would not be helpful in determining the child’s preferences (see Matter of Thillman v Mayer, 85 AD3d 1624, 1625 [2011]; see generally Matter of Walters v Francisco, 63 AD3d 1610, 1611 [2009]).
discussed Cited "see" SLOMA, MICHELE A. v. SLOMA, ERIC M.
N.Y. App. Div. · 2017 · signal: see · confidence high
In any event, considering the child’s young age as well as the testimony that she was being coached on what to say to the court, an in camera hearing with the child would not be helpful in determining the child’s preferences (see Matter of Thillman v Mayer, 85 AD3d 1624, 1625 ; see generally Matter of Walters v Francisco, 63 AD3d 1610, 1611 ).
Retrieving the full opinion text from the archive…
In the Matter of Dawn R. Francisco Walters
v.
Rex R. Francisco
Appellate Division of the Supreme Court of the State of New York.
Jun 5, 2009.
63 A.D.3d 1610
Cited by 15 opinions  |  Published

Appeal from an order of the Family Court, Allegany County (Lynn L. Hartley, J.H.O.), entered December 19, 2007 in a proceeding pursuant to Family Court Act article 6. The order granted respondent’s motion and dismissed the amended petition seeking, inter alia, to modify a prior order of custody and visitation.

[*1611] It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner mother appeals from an order granting the motion of respondent father to dismiss the amended petition seeking, inter alia, to modify a prior order of custody and visitation. We note at the outset that, in contending that Family Court erred in determining that she failed to establish a change in circumstances sufficient to warrant modification of the prior order, the mother relies solely upon the father’s alleged interference with her telephone contact with the child. The mother has not raised any issues with respect to the remaining instances of changed circumstances alleged in the amended petition and thus is deemed to have abandoned any such issues (see Matter of Jenks v Valentine, 19 AD3d 1158 [2005]; Matter of Joseph, 286 AD2d 995 [2001]; Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).

Where, as here, “a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof and afford the petitioner every favorable inference that reasonably could be drawn therefrom” (Matter of Le Blanc v Morrison, 288 AD2d 768, 770 [2001]; see CPLR 4401; Family Ct Act § 165 [a]). We conclude that the court properly determined that the mother failed to establish a change in circumstances sufficient to warrant modification of the prior order (cf. Le Blanc, 288 AD2d at 770; Matter of Markey v Bederian, 274 AD2d 816, 817-818 [2000]).

Contrary to the further contention of the mother, the court did not abuse its discretion in refusing to conduct a Lincoln hearing. In determining whether such a hearing is warranted, the court must determine whether the in camera testimony of the child “will on the whole benefit the child by obtaining for the Judge significant pieces of information he [or she] needs to make the soundest possible decision” (Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1969]) and, here, the court properly determined that a Lincoln hearing was not warranted (see Matter of Charles M.O. v Heather S.O., 52 AD3d 1279 [2008]). Present—Smith, J.P, Centra, Peradotto, Green and Gorski, JJ.