Rivera v. LaSalle, 84 A.D.3d 1436 (N.Y. App. Div. 2011). · Go Syfert
Rivera v. LaSalle, 84 A.D.3d 1436 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
56 citation events (56 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 2011 → 2026 · click a year to view as-of
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Top citers, strongest first. 45 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Jillian PP. v. Christopher C. (2×)
N.Y. App. Div. · 2026 · confidence medium
Although "our fact-finding authority is as broad as that of Family Court" ( Matter of Richard CC. v Lacey DD. , 243 AD3d 1186, 1189 [3d Dept 2025] [internal quotation marks and citations omitted]), in view of the passage of time since the fact-finding hearing and the lack of any reliable basis for this Court to independently consider the child's wishes ( see Matter of Rivera v LaSalle , 84 AD3d 1436, 1440 [3d Dept 2011]), we find the record to be insufficient for us to fashion our own visitation schedule and conditions.
discussed Cited as authority (rule) Matter of Olmsted v. Olmsted
N.Y. App. Div. · 2026 · confidence medium
We conclude, however, that the error does not justify disturbing an otherwise valid determination ( see generally Matter of Carter v Work , 100 AD3d 1557, 1558 [4th Dept 2012]; Matter of Rivera v LaSalle , 84 AD3d 1436, 1437 [3d Dept 2011]).
discussed Cited as authority (rule) Matter of Thomas BB. v. Jessica YY.
N.Y. App. Div. · 2023 · confidence medium
The child's preference is relevant in assessing what custodial arrangement would be in his best interests — although, given that the child [*3]was only 12 years old at the time of the hearing, that preference is arguably not "entitled to the great weight we accord to the preferences of older adolescents" — but it is not determinative ( Matter of Rivera v LaSalle , 84 AD3d 1436, 1438 [3d Dept 2011] [internal quotation marks and citation omitted]; see Dintruff v McGreevy , 34 NY2d 887, 888 [1974]; cf. Matter of Oddy v Oddy , 296 AD2d 616, 617 [3d Dept 2002]).
discussed Cited as authority (rule) Matter of Jesse U. v. Dakota V.
N.Y. App. Div. · 2022 · confidence medium
Footnotes Footnote 1: Family Court's July 2020 order was entered on the parents' consent but over the AFC's objection, and we agree that the child is aggrieved thereby given that she did not receive her desired outcome with respect to the custodial arrangement ( see Matter of Newton v McFarlane , 174 AD3d 67 , 74-75 [2019]; Matter of Rivera v LaSalle , 84 AD3d 1436, 1437 [2011]; compare Matter of Denise V.E.J. [Latonia J.] , 163 AD3d 667 , 669 [2018]).
discussed Cited as authority (rule) Matter of Cecelia BB. v. Frank CC.
N.Y. App. Div. · 2021 · confidence medium
Family Court weighed the appropriate factors, including the strengths and weaknesses of both the mother and the father and the support they could provide the younger child with respect to his intellectual and emotional well-being, and we cannot say that its decision to award the father sole legal and physical custody of the younger child lacks a sound and substantial basis in the record. [FN5] The November 2018 incident clearly had a significant impact on the younger child, 15 years old at the time of the underlying hearings, and his reasoned wishes, made clear by his attorneys, were entitled …
discussed Cited as authority (rule) Vickie F. v. Joseph G.
N.Y. App. Div. · 2021 · confidence medium
Additionally, although the wishes of the younger child, who was 14 years old at the time of the trial, were entitled to consideration, this is but one factor for the court to consider in weighing her best interests and were not dispositive on the issue of custody ( see Matter of Lorimer v Lorimer , 167 AD3d 1263 , 1265 [2018], lv dismissed and denied 33 NY3d 1040 [2019]; Matter of Rivera v LaSalle , 84 AD3d 1436, 1438 [2011]).
discussed Cited as authority (rule) Matter of Muriel v. Muriel
N.Y. App. Div. · 2020 · confidence medium
In this case, the children were 10 and 7 years old, respectively, at the time of the proceeding, ages at which a child's "wishes [are] not necessarily entitled to the great weight' we accord to the preferences of older adolescents . . . [but are], at minimum, entitled to consideration' " ( Matter of Rivera v LaSalle , 84 AD3d 1436, 1439 [3d Dept 2011]).
cited Cited as authority (rule) Matter of Shanna O. v. James P.
N.Y. App. Div. · 2019 · confidence medium
Although not determinative, the child's attorney advocated that the child continue living with the stepmother ( see Matter of Rivera v LaSalle , 84 AD3d 1436, 1438 [2011]).
discussed Cited as authority (rule) Matter of Lorimer v. Lorimer (2×)
N.Y. App. Div. · 2018 · confidence medium
Furthermore, although the wishes of the older child, who was nearly 11 years old at the time of the hearing, were "entitled to consideration" ( Matter of Rivera v LaSalle , 84 AD3d 1436, 1439 [2011]), this is just one factor in the best interests analysis and is not dispositive ( see Matter of Imrie v Lyon , 158 AD3d at 1022; Matter of Mabie v O'Dell , 48 AD3d 988, 989 [2008]; Matter of Cornell v Cornell , 8 AD3d 718, 719 [2004]).
discussed Cited as authority (rule) Matter of Imrie v. Lyon
N.Y. App. Div. · 2018 · confidence medium
Moreover, while the child's wishes are some indication of what is in his or her best interests and "are entitled to great weight" ( Matter of Coull v Rottman , 131 AD3d 964, 964 [2015], lv denied 26 NY3d 914 [2015]; see Matter of Oyefeso v Sully , 148 AD3d 710, 712 [2017]; Gizzi v Gizzi , 136 AD3d 1405, 1406 [2016]; Melissa C.D. v Rene I.D. , 117 AD3d 407, 408 [2014]), those expressed wishes are only one factor to be considered and do not dictate a certain result in the best interests calculus ( see Eschbach v Eschbach , 56 NY2d 167, 173 [1982]; Matter of Pierce v Pierce , 151 AD3d 1610, 1610-…
discussed Cited as authority (rule) Matter of Whetsell v. Braden
N.Y. App. Div. · 2017 · confidence medium
In light of the child’s age at the time of the fact-finding hearing, her preference is an additional factor to be taken into account, but is not dispositive (see Matter of Garcia v Zinna, 149 AD3d 1185, 1186 [2017]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011]).
discussed Cited as authority (rule) Matter of Manell v. Manell
N.Y. App. Div. · 2017 · confidence medium
Contrary to the father’s argument, we find that Family Court’s decision reveals that it considered the child’s wishes as part of its best interests analysis, although the request was not granted (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Matter of Rutland v O’Brien, 143 AD3d 1060, 1062 [2016]).
discussed Cited as authority (rule) Matter of Holleran v. Faucett
N.Y. App. Div. · 2016 · confidence medium
Ordered that the orders are affirmed, without costs. * Although we must agree with the mother’s argument that Family Court erred in revealing the substance of the child’s statements made during the Lincoln hearing, reversal is not justified here (see Matter of Rohde v Rohde, 135 AD3d 1011 , 1011 n [2016]; Matter of Lawrence v Kowatch, 119 AD3d 1004 , 1006 n 1 [2014]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1437 [2011]).
discussed Cited as authority (rule) Matter of Tina RR. v. Dennis RR.
N.Y. App. Div. · 2016 · confidence medium
Although the son expressed a desire to have only supervised visitation with the father, his wishes are just one factor that Family Court considered and are not determinative (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438-1439 [2011]).
discussed Cited as authority (rule) Matter of Rutland v. O'Brien
N.Y. App. Div. · 2016 · confidence medium
Given the son’s age at the time of trial, his preference warrants thoughtful consideration, but is not dispositive (see Matter of Rohde v Rohde, 135 AD3d 1011, 1012 [2016]; Matter of Rumpff v Schorpp, 133 AD3d 1109, 1113 [2015]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011]).
discussed Cited as authority (rule) Matter of Barrows v. Sherwood
N.Y. App. Div. · 2016 · confidence medium
Finally, while the child’s wishes are to be taken into account, the caseworker’s testimony that he expressed a preference to live with the mother is not dispositive (see Matter of Lawton v Lawton, 136 AD3d 1168, 1169 [2016]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]).
cited Cited as authority (rule) Matter of Lawton v. Lawton
N.Y. App. Div. · 2016 · confidence medium
The children’s wishes should be considered but are not dispositive (see Matter of Rumpff v Schorpp, 133 AD3d 1109, 1113 [2015]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]).
discussed Cited as authority (rule) Matter of Lilly NN. v. Jerry OO. (2×)
N.Y. App. Div. · 2015 · confidence medium
Thus, in light of the children’s “ability to articulate [their] preferences as reflected in the Lincoln hearing 3 transcript,” at minimum, the unequivocal expression of preferences are “ ‘entitled to consideration’ ” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011], quoting Matter of Lowe v O’Brien, 81 AD3d 1093, 1096 [2011], lv denied 16 NY3d 713 [2011]).
discussed Cited as authority (rule) Rumpff v. Schorpp
N.Y. App. Div. · 2015 · confidence medium
The children’s wishes are not dispositive, but they are certainly entitled to consideration (see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Matter of Valenti v Valenti, 57 AD3d 1131, 1136 [2008], lv denied 12 NY3d 703 [2009]).
discussed Cited as authority (rule) Rumpff v. Schorpp
N.Y. App. Div. · 2015 · confidence medium
The children’s wishes are not dispositive, but they are certainly entitled to consideration (see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Matter of Valenti v Valenti, 57 AD3d 1131, 1136 [2008], lv denied 12 NY3d 703 [2009]).
cited Cited as authority (rule) Sheridan v. Sheridan
N.Y. App. Div. · 2015 · confidence medium
Most glaringly, the court failed to give sufficient weight to the child’s preference to live with the father (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1437-1439 [2011]).
cited Cited as authority (rule) Sheridan v. Sheridan
N.Y. App. Div. · 2015 · confidence medium
Most glaringly, the court failed to give sufficient weight to the child’s preference to live with the father (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1437-1439 [2011]).
cited Cited as authority (rule) Matter of Dykstra v. Bain
N.Y. App. Div. · 2015 · confidence medium
Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011]).
discussed Cited as authority (rule) King v. Chester (2×)
N.Y. App. Div. · 2014 · confidence medium
In this regard, if a child is able to articulate a custodial preference, his or her “wishes are ‘some indication of what is in [his or her] best interests’ ” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011], quoting Eschbach v Eschbach, 56 NY2d 167, 173 [1982]).
discussed Cited as authority (rule) King v. Chester (2×)
N.Y. App. Div. · 2014 · confidence medium
In this regard, if a child is able to articulate a custodial preference, his or her “wishes are ‘some indication of what is in [his or her] best interests’ ” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011], quoting Eschbach v Eschbach, 56 NY2d 167, 173 [1982]).
discussed Cited as authority (rule) MatterofSeeleyvSeeley
N.Y. App. Div. · 2014 · confidence medium
While the preferences of a child are not dispositive, they offer some indication of his or her best interests and are a -5- 516391 factor to be taken into account in making custody and visitation decisions (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Matter of Flood v Flood, 63 AD3d 1197, 1198-1199 [2009]; see generally Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1102 [2007]).
discussed Cited as authority (rule) Seeley v. Seeley
N.Y. App. Div. · 2014 · confidence medium
While the preferences of a child are not dispositive, they offer some indication of his or her best interests and are a factor to be taken into account in making custody and visitation decisions (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Matter of Flood v Flood, 63 AD3d 1197, 1198-1199 [2009]; see generally Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1102 [2007]).
discussed Cited as authority (rule) Seeley v. Seeley
N.Y. App. Div. · 2014 · confidence medium
While the preferences of a child are not dispositive, they offer some indication of his or her best interests and are a factor to be taken into account in making custody and visitation decisions (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Matter of Flood v Flood, 63 AD3d 1197, 1198-1199 [2009]; see generally Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1102 [2007]).
discussed Cited as authority (rule) Yeager v. Yeager
N.Y. App. Div. · 2013 · confidence medium
To be sure, the wishes of this 12-year-old child were “at minimum, entitled to consideration” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011] [internal quotation marks and citation omitted]), and the record does not reflect whether such consideration was given to the child’s wishes.
discussed Cited as authority (rule) Yeager v. Yeager
N.Y. App. Div. · 2013 · confidence medium
To be sure, the wishes of this 12-year-old child were “at minimum, entitled to consideration” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011] [internal quotation marks and citation omitted]), and the record does not reflect whether such consideration was given to the child’s wishes.
cited Cited as authority (rule) King v. Barnes
N.Y. App. Div. · 2012 · confidence medium
Given the child’s young age, his in camera statements do not receive as much weight as an older child (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011]).
cited Cited as authority (rule) King v. Barnes
N.Y. App. Div. · 2012 · confidence medium
Given the child’s young age, his in camera statements do not receive as much weight as an older child (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011]).
discussed Cited as authority (rule) Carter v. Work
N.Y. App. Div. · 2012 · confidence medium
Finally, although we agree with the AFC that the court improperly disclosed the child’s statement at the Lincoln hearing (see Matter of Spencer v Spencer, 85 AD3d 1244, 1246 [2011]), we conclude that the error does not justify disturbing an otherwise valid determination (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1437 [2011]).
discussed Cited as authority (rule) Carter v. Work
N.Y. App. Div. · 2012 · confidence medium
Finally, although we agree with the AFC that the court improperly disclosed the child’s statement at the Lincoln hearing (see Matter of Spencer v Spencer, 85 AD3d 1244, 1246 [2011]), we conclude that the error does not justify disturbing an otherwise valid determination (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1437 [2011]).
discussed Cited as authority (rule) Hilgenberg v. Hertel
N.Y. App. Div. · 2012 · confidence medium
“Given the . . . deficiencies in the record . . . , this Court can neither conclude that a sound and substantial basis exists for Family Court’s award of [visitation] to the [grand]father . . . , nor can we ac cord appropriate weight to the [court’s credibility determinations] in conducting our own independent review” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1440 [2011]).
discussed Cited as authority (rule) Hilgenberg v. Hertel
N.Y. App. Div. · 2012 · confidence medium
“Given the . . . deficiencies in the record . . . , this Court can neither conclude that a sound and substantial basis exists for Family Court’s award of [visitation] to the [grand]father . . . , nor can we ac cord appropriate weight to the [court’s credibility determinations] in conducting our own independent review” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1440 [2011]).
cited Cited as authority (rule) Byron v. Davis
N.Y. Sup. Ct. · 2012 · confidence medium
(Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [3d Dept 2011]; Matter of Gravelding v Loper, 42 AD3d 740, 743 [3d Dept 2007].) . 1 Kings 3:11 (New International Version).
discussed Cited as authority (rule) Martin v. Mills
N.Y. App. Div. · 2012 · confidence medium
Further, as the record is insufficient for us to make an independent determination in this regard, we must remit for that purpose (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1440 [2011] ; Matter of Whitaker v Murray, 50 AD3d 1185 , ,1186-1187 [2008]; cf. Matter of Valenti v Valenti, 57 AD3d 1131, 1132 [2008], lv denied 12 NY3d 703 [2009]).
cited Cited as authority (rule) Fiacco v. Fiacco
N.Y. App. Div. · 2012 · confidence medium
Supreme Court considered, but was not required to abide by, the children’s wishes (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]).
discussed Cited as authority (rule) Marino v. Marino
N.Y. App. Div. · 2011 · confidence medium
Contrary to the contention of the Attorney for the Child, the “[c]ourt is, of course, not required to abide by the wishes of a child to the exclusion of other factors in the best interests analysis” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; see Fox, 177 AD2d at 211-212 ), especially where the evidence supports the court’s conclusion that “to follow [the child’s] wishes would be tantamount to severing her relationship with her father, and [that] result would not be in [the child’s] best interest[s].” We have considered the remaining contentions of the Attorney for th…
discussed Cited as authority (rule) Barrington v. Barrington
N.Y. App. Div. · 2011 · confidence medium
Finally, we reject as unfounded the mother’s claims that the attorney for the children could not represent both children because they had divergent interests (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Barbara ZZ. v Daniel A., 64 AD3d 929, 933-934 [2009]).
discussed Cited "see" Matter of Heather SS. v. Ronald SS.
N.Y. App. Div. · 2019 · signal: see · confidence high
"Although not determinative, the expressed wishes of the children are some indication of what is in their best interests, considering their age, maturity and potential to be influenced" ( Matter of Stephen G. v Lara H. , 139 AD3d 1131, 1132 [2016] [internal quotations marks, brackets and citations omitted], lv denied 27 NY3d 1187 [2016]; see Eschbach v Eschbach , 56 NY2d 167, 173 [1982]). "[I]n determining the best interests of more than one child, the court must be cognizant of the individual needs of each child and should therefore give separate consideration to each child's preferences" ( M…
discussed Cited "see" Matter of John v. v. Sarah W.
N.Y. App. Div. · 2016 · signal: see · confidence high
Even if, as occurred here, a child assents to his or her testimony being shared with his or her parents, Family *1072 Court must not put a child in “the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them or be required to openly choose between them” (Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1969]; accord Matter of Julie E. v David E., 124 AD3d at 937; see Matter of Rivera v LaSalle, 84 AD3d 1436, 1437 [2011]).
discussed Cited "see" Matter of Stephen G. v. Lara H.
N.Y. App. Div. · 2016 · signal: see · confidence high
Although not determinative, the expressed wishes of the children are “some indication of what is in [their] best interests,” considering their age, maturity and potential to be influenced *1133 (Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Matter of Carballeira v Shumway, 273 AD2d 753, 755 [2000], lv denied 95 NY2d 764 [2000]).
discussed Cited "see" Susan LL. v. Victor LL.
N.Y. App. Div. · 2011 · signal: see · confidence high
Absent a direction to the contrary, “ ‘the child’s right to confidentiality should remain paramount’ ” (Matter of Verry v Verry, 63 AD3d 1228, 1229 [2009], lv denied 13 NY3d 707 [2009], quoting Matter of Hrusovsky v Benjamin, 274 AD2d 674, 676 [2000]; see Matter of Rivera v LaSalle, 84 AD3d 1436, 1437 [2011]).
Retrieving the full opinion text from the archive…
In the Matter of Jeannine M. Rivera
v.
Michael D. LaSalle, Christopher Hammond, as Attorney for the Children
Appellate Division of the Supreme Court of the State of New York.
May 5, 2011.
84 A.D.3d 1436
Garry.
Cited by 47 opinions  |  Published
Garry J.

Appeal from an order of the Family Court of Otsego County (Burns, J.), entered December 15, 2009, which dismissed petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) have two children (born 1998 and 2001). The parties divorced in 2007 pursuant to a separation agreement in which they agreed to continue an alternating week-to-week joint custody arrangement they had begun in 2005. In May 2009, the mother commenced this modification proceeding seeking primary physical custody of both children on the ground that the week-to-week arrangement had become unworkable due to the children’s growth, their increasing involvement in athletic and extracurricular activities and the location of the mother’s home approximately one hour from their school. Following a two-day fact-finding hearing and a Lincoln hearing, Family Court awarded primary physical custody to the father. The attorney for the children appeals, contending that the court erred in determining that it was in the children’s best interests to live with the father.

Initially, we agree with the assertion that Family Court breached the children’s right to confidentiality by revealing the preferences that they expressed during the Lincoln hearing and in a subsequent letter to the court allegedly written by the younger child (see generally Matter of Lincoln v Lincoln, 24 NY2d 270 [1969]).* While this error appears wholly inadvertent, and would not justify disturbing an otherwise valid custody determination (see Matter of Verry v Verry, 63 AD3d 1228, 1229 [2009], lv denied 13 NY3d 707 [2009]), we reiterate that “[Children must be protected from having to openly choose between parents or openly divulge intimate details of their respective parent/child relationships” (Matter of Sellen v Wright, 229 AD2d 680, 681-682 [1996]). Their right to confidentiality “remain[s] paramount absent a direction to the contrary” (Matter of Hrusovsky v Benjamin, 274 AD2d 674, 676 [2000]).

The attorney for the children contends that Family Court[*1438] gave insufficient weight to the children’s preferences — in particular, those expressed by the older child — in making its best interests determination. Family Court is, of course, not required to abide by the wishes of a child to the exclusion of other factors in the best interests analysis (see Matter of Smith v Smith, 61 AD3d 1275, 1277-1278 [2009]). If such were the case, “ ‘then all a court would be required to decide is whether [a child’s] preference of parent is voluntary and untainted and then follow the child’s wish’ ” (Matter of Cornell v Cornell, 8 AD3d 718, 719 [2004], quoting Dintruff v McGreevy, 34 NY2d 887, 888 [1974]). However, a child’s wishes are “some indication of what is in [his or her] best interests” (Eschbach v Eschbach, 56 NY2d 167, 173 [1982]). Though not dispositive, a child’s preferences are one of the factors to be considered in making a custody determination (see Matter of Valenti v Valenti, 57 AD3d 1131, 1136 [2008], lv denied 12 NY3d 703 [2009]; Matter of Oddy v Oddy, 296 AD2d 616, 617 [2002]).

Here, Family Court stated that both children “expressed an unequivocal position” during the Lincoln hearing, but that the court placed little weight on either child’s preference as the children subsequently retracted that position in the letter to the court. When the record supports a finding that a child’s wishes are “confused and changing,” they may be given little weight (Matter of Gravelding v Loper, 42 AD3d 740, 743 [2007]). However, this record does not support such a determination, at least as to the older child. The only indication that either child’s preference had changed was allegedly contained in the letter, which cannot be examined as it was lost. Additionally, while the court’s decision states that the letter came from both children, the father stated that it was written by the younger child alone; on this record, it is impossible to determine whether the text supported its attribution to both children. Notably, in determining the best interests of more than one child, “the court must be cognizant of the individual needs of each child” and should therefore give separate consideration to each child’s preferences (Eschbach v Eschbach, 56 NY2d at 172). Given the circumstances of the letter’s delivery, we note our concern that there was minimal inquiry conducted to explore the reasons for the alleged change in preference or to ascertain “the potential for influence having been exerted” (id. at 173). The receipt of the unsworn letter called for further development on the record— either through the attorney for the children or by means of a second Lincoln hearing — to determine why the preference had changed, whether the children’s wishes had diverged and, if so," whether their continued representation by the same attorney presented any potential conflict of interest (compare Barbara [*1439] ZZ. v Daniel A., 64 AD3d 929, 933-934 [2009]; Corigliano v Corigliano, 297 AD2d 328, 329 [2002]).

The weight to be given to a child’s preference in a custody determination becomes greater as the child ages (see Matter of Passero v Giordano, 53 AD3d 802, 804 [2008]). Here, the older child was nearly 11 years old at the time of the Lincoln hearing — an age at which his wishes were not necessarily entitled to the “great weight” we accord to the preferences of older adolescents (Matter of McGovern v McGovern, 58 AD3d 911, 913 n 2 [2009]; see Matter of Cornell v Cornell, 8 AD3d at 719; Matter of Oddy v Oddy, 296 AD2d at 617). However, based on the older child’s level of maturity and ability to articulate his preferences as reflected in the Lincoln hearing transcript, we are persuaded that the unequivocal position he expressed at that time was, at minimum, “entitled to consideration” (Matter of Lowe v O’Brien, 81 AD3d 1093, 1096 [2011]; compare Matter of Winston v Gates, 64 AD3d 815, 818 [2009]). The absence from the record of the letter or of any other evidence that the older child’s position had changed prevents us from determining whether a sound and substantial basis existed for Family Court’s decision to give it little weight.

Moreover, upon this limited record, we are troubled by the possibility that the lack of weight given to the children’s wishes may have affected Family Court’s decision. The chief reason noted by the court for the award of physical custody to the father was that he resided in the district where the children were attending school, and awarding custody to the father would allow the children to continue to engage in their academic, athletic and extracurricular activities without disruption. Other factors discussed by the court were either equally balanced between the parents or appeared to inure more to the benefit of the mother than the father. The court found that the children enjoyed good relationships with both parents, that the mother and father had a generally civil and amicable relationship with one another, and that they were able to make joint decisions in the children’s best interests. With regard to their “past performance, relative fitness and ability to guide and provide for the child[ren]’s development — both intellectually and emotionally” (Matter of McGovern v McGovern, 58 AD3d at 914-915), the court described the mother as “a sincere and well-meaning parent, acting in the best interest of her children.” As to the father, however, the court expressed significant concern over an angry altercation that had taken place between the father and the maternal grandmother in the presence of one of the children, and the father’s sarcasm and anger when questioned in[*1440] court about the incident. Ultimately characterizing the altercation as an isolated act of domestic violence, the court cautioned the father that such conduct could affect future custody and visitation determinations and was “best not repeated.” Family Court also noted that a new girlfriend had recently moved into the father’s home and the children had some difficulty getting along with the girlfriend’s son.

Given the closeness of the determination and the deficiencies in the record regarding the children’s wishes, this Court can neither conclude that a sound and substantial basis exists for Family Court’s award of custody to the father (see Matter of Hurlburt v Behr, 70 AD3d 1266, 1268 [2010], lv dismissed 15 NY3d 943 [2010]), nor can we accord appropriate weight to the children’s preferences in conducting our own independent review (see Matter of Brown v Brown, 52 AD3d 903, 905 [2008]; Castler v Castler, 233 AD2d 720, 721 [1996]). We therefore remit to Family Court for further proceedings.

Mercure, J.E, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is modified, on the law and the facts, without costs, by reversing so much thereof as awarded primary physical custody to respondent; matter remitted to the Family Court of Otsego County for further proceedings not inconsistent with this Court’s decision, and, pending a new determination, custody of the children shall remain temporarily with respondent; and, as so modified, affirmed.

During the 10-day period between the Lincoln hearing and the conclusion of the fact-finding hearing, the father delivered the letter to the attorney for the children and then to Family Court. The court had a brief discussion with the father, who testified that the younger child had written the letter and that the father did not know its contents. The court then advised the parties that the letter would be sealed and treated as part of the Lincoln hearing. Unfortunately, the letter was thereafter lost and has not been recovered.