Walker v. Tallman, 256 A.D.2d 1021 (N.Y. App. Div. 1998). · Go Syfert
Walker v. Tallman, 256 A.D.2d 1021 (N.Y. App. Div. 1998). Cases Citing This Book View Copy Cite
34 citation events (29 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 2000 → 2026 · click a year to view as-of
2000 2013 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of N.L. v. J.H.
N.Y. App. Div. · 2024 · confidence medium
The father has made no showing that the court abused its discretion in failing to conduct an in camera interview of the child ( see Matter of Carlos L. v Eva P. , 190 AD3d 421 , 422 [1st Dept 2021], lv denied 36 NY3d 907 [2021]; Matter of Walker v Tallman , 256 AD2d 1021, 1022 [3d Dept 1998], lv denied 93 NY2d 804 [1999]).
cited Cited as authority (rule) Matter of Lorimer v. Lorimer
N.Y. App. Div. · 2018 · confidence medium
That said, whether to conduct a Lincoln hearing rests in the discretion of Family Court ( see Matter of Walker v Tallman , 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).
discussed Cited as authority (rule) Matter of Battin v. Battin
N.Y. App. Div. · 2015 · confidence medium
In any event, although Lincoln hearings are preferable, they are not mandatory; we would have found no abuse of discretion in yiew of, among other things, the ample, undisputed record evidence regarding the younger son’s preferences (see Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).
discussed Cited as authority (rule) Adams v. Morris
N.Y. App. Div. · 2013 · confidence medium
Finally, we discern no abuse of Family Court’s discretion in failing to conduct a Lincoln hearing, particularly considering the child’s age and developmental delays, the representation provided by the child’s attorney and the fact that no request for such a hearing was made (see Matter of DeRuzzio v Ruggles, 88 AD3d 1091, 1092 [2011]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]; compare Matter of Yeager v Yeager, 110 AD3d 1207, 1209 [2013]).
discussed Cited as authority (rule) Adams v. Morris
N.Y. App. Div. · 2013 · confidence medium
Finally, we discern no abuse of Family Court’s discretion in failing to conduct a Lincoln hearing, particularly considering the child’s age and developmental delays, the representation provided by the child’s attorney and the fact that no request for such a hearing was made (see Matter of DeRuzzio v Ruggles, 88 AD3d 1091, 1092 [2011]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]; compare Matter of Yeager v Yeager, 110 AD3d 1207, 1209 [2013]).
discussed Cited as authority (rule) Yeager v. Yeager
N.Y. App. Div. · 2013 · confidence medium
While the decision whether to conduct such a hearing lies within the court’s discretion (see Matter of Jessica B. v Robert B., 104 AD3d 1077 , 1078 [2013]; Matter of DeRuzzio v Ruggles, 88 AD3d 1091, 1092 [2011]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]), it is often the preferable course (see Matter of Jessica B. v Robert B., 104 AD3d at 1078 ).
discussed Cited as authority (rule) Yeager v. Yeager
N.Y. App. Div. · 2013 · confidence medium
While the decision whether to conduct such a hearing lies within the court’s discretion (see Matter of Jessica B. v Robert B., 104 AD3d 1077 , 1078 [2013]; Matter of DeRuzzio v Ruggles, 88 AD3d 1091, 1092 [2011]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]), it is often the preferable course (see Matter of Jessica B. v Robert B., 104 AD3d at 1078 ).
discussed Cited as authority (rule) Suarez v. Williams
N.Y.C. Fam. Ct. · 2013 · confidence medium
(Matter of DeRuzzio v Ruggles, 88 AD3d 1091, 1091-1092 [3d Dept 2011]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [3d Dept 1998], Iv denied 93 NY2d 804 [1999].) Mother’s counsel questioned the court’s decision to meet with the child prior to the conclusion of mother’s defense case.
discussed Cited as authority (rule) Rush v. Roscoe
N.Y. App. Div. · 2012 · confidence medium
Finally, as a Lincoln hearing is not mandatory, we do not find further error in Family Court’s refusal to conduct one here (see Matter of DeRuzzio v Ruggles, 88 AD3d 1091, 1091-1092 [2011]; Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).
discussed Cited as authority (rule) Rush v. Roscoe
N.Y. App. Div. · 2012 · confidence medium
Finally, as a Lincoln hearing is not mandatory, we do not find further error in Family Court’s refusal to conduct one here (see Matter of DeRuzzio v Ruggles, 88 AD3d 1091, 1091-1092 [2011]; Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).
discussed Cited as authority (rule) Ames v. Ames
N.Y. App. Div. · 2012 · confidence medium
Given the age of the child and the other particular circumstances present here, we discern no abuse of Family Court’s discretion in failing to appoint an attorney for the child (see Moor v Moor, 75 AD3d at 679 ; Matter of Swett v Balcom, 64 AD3d at 936 ; Matter of Burdick v Babcock, 59 AD3d 826, 827 [2009]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]; compare Matter of Amato v Amato, 51 AD3d at 1124-1125 ).
discussed Cited as authority (rule) Ames v. Ames
N.Y. App. Div. · 2012 · confidence medium
Given the age of the child and the other particular circumstances present here, we discern no abuse of Family Court’s discretion in failing to appoint an attorney for the child (see Moor v Moor, 75 AD3d at 679 ; Matter of Swett v Balcom, 64 AD3d at 936 ; Matter of Burdick v Babcock, 59 AD3d 826, 827 [2009]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]; compare Matter of Amato v Amato, 51 AD3d at 1124-1125 ).
cited Cited as authority (rule) DeRuzzio v. Ruggles
N.Y. App. Div. · 2011 · confidence medium
The determination of whether to hold a Lincoln hearing lies within Family Court’s discretion (see Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).
discussed Cited as authority (rule) Carolyn S. v. Tompkins County Department of Social Services
N.Y. App. Div. · 2011 · confidence medium
“The decision to interview the children in a custody dispute, although preferable, is not mandatory, but rather lies within the discretion of the trial court” (Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999] [citations omitted]; see Matter of Lincoln v Lincoln, 24 NY2d 270, 273-274 [1969]).
discussed Cited as authority (rule) Bush v. Stout
N.Y. App. Div. · 2009 · confidence medium
In light of the extensive, detailed testimony given in this case, as well as the home evaluations conducted at the mother’s request, we reject the mother’s contention that Family Court abused its discretion in declining to appoint a law guardian (see Matter of Comins v Briggs, 25 AD3d 842, 844 [2006]; Matter of Ebel v Urlich, 273 AD2d at 532 ; Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).
discussed Cited as authority (rule) Desroches v. Desroches
N.Y. App. Div. · 2008 · confidence medium
In a child custody proceeding, the appointment of an attorney for a child is within the discretion of the Family Court (see Family Ct Act § 249; Richard D. v Wendy P., 47 NY2d 943, 944 [1979]; Matter of Fallon v Fallon, 4 AD3d 426, 427 [2004]; Matter of Smith v DiFusco, 282 AD2d 753 [2001]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998]; Matter of Farnham v Farnham, 252 AD2d 675, 677 [1998]).
discussed Cited as authority (rule) Charles M.O. v. Heather S.O.
N.Y. App. Div. · 2008 · confidence medium
Finally, we conclude that the court properly exercised its discretion in declining to conduct a Lincoln hearing (see Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], Iv denied 93 NY2d 804 [1999]; Matter of Karpensky v Karpensky, 235 AD2d 594, 596 [1997]).
discussed Cited as authority (rule) DiVittorio v. DiVittorio
N.Y. App. Div. · 2007 · confidence medium
Under the circumstances of this case, it is unnecessary to remit the matter for the appointment of a law guardian (see Richard D. v Wendy P., 47 NY2d 943, 944-945 [1979]; Matter of Weis v Rivera, 29 AD3d 812, 812 [2006]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998]; Matter of Smith v DiFusco, 282 AD2d 753 [2001]).
discussed Cited as authority (rule) Pecore v. Pecore
N.Y. App. Div. · 2006 · confidence medium
Her claim that the court abused its discretion by failing to hold a second Lincoln hearing is contrary to her counsel’s express confirmation of Family Court’s understanding that she did not request a second Lincoln hearing and, in any event, there is no evidence that a second hearing would have provided additional useful information (see Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).
discussed Cited as authority (rule) Weis v. Rivera
N.Y. App. Div. · 2006 · confidence medium
The Family Court providently exercised its discretion in declining to appoint a Law Guardian to represent the child (see Richard D. v Wendy P., 47 NY2d 943, 944-945 [1979]; Matter of Walker v Tollman, 256 AD2d 1021, 1022 [1998]; Nacson v Nacson, 166 AD2d 510, 511 [1990]; cf. Matter of Acosta v Acosta, 259 AD2d 747 [1999]; Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117 [1990]).
discussed Cited as authority (rule) Comins v. Briggs
N.Y. App. Div. · 2006 · confidence medium
To the extent that petitioner contends that this constitutes reversible error, “the case law makes clear that, although the appointment of a Law Guardian in a contested custody matter remains ‘the preferred practice’, . . . such appointment is discretionary, not mandatory” (Lips v Lips, 284 AD2d 716, 716 [2001], quoting Davis v Davis, 269 AD2d 82, 85 [2000]; see Matter of Cole v Reynolds, 8 AD3d 703, 705 [2004]; Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).
discussed Cited as authority (rule) Riccio v. Riccio
N.Y. App. Div. · 2005 · confidence medium
The Family Court providently exercised its discretion in declining to appoint a Law Guardian to represent the child (see Richard D. v Wendy P., 47 NY2d 943, 944-945 [1979]; Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998]; Nacson v Nacson, 166 AD2d 510, 511 [1990]; cf. Matter of Acosta v Acosta, 259 AD2d 747 [1999]; Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117 [1990]).
Retrieving the full opinion text from the archive…
In the Matter of Lugene Walker
v.
Thomas Tallman
Appellate Division of the Supreme Court of the State of New York.
Dec 30, 1998.
256 A.D.2d 1021
Mercure.
Cited by 31 opinions  |  Published
Mercure, J.

Appeal from an order of the Family Court of Tompkins County (Barrett, J.), entered January 17, 1998, which, inter alia, granted respondent’s cross application, in a proceeding pursuant to Family Court Act article 6, for sole custody of the parties’ children.

Petitioner and respondent are the parents of three children. After the parties separated, they stipulated to a Family Court order granting them joint custody of the children but providing for primary physical custody to petitioner. Subsequently, petitioner filed a petition seeking sole custody of the children, primarily alleging that respondent was unable to control his temper and was verbally abusive. Respondent filed a cross petition for sole custody upon the grounds that petitioner was physically and emotionally abusive toward the children, that she abused alcohól and that he was better able to provide for the children. Following a fact-finding hearing, Family Court denied the petition and granted the cross petition, concluding that although the fitness of both parties “is suspect * * * it appears to be in the best interests of the children for [Respondent[*1022] to act as custodian of the children, supported by the paternal grandparents”.

On appeal, petitioner raises but three discrete issues; all are found to be lacking in merit. Initially, we are unpersuaded that Family Court erred as a matter of law in failing to appoint a Law Guardian to represent the children’s interests or by failing to speak with the children directly regarding their preferences. It has been firmly established that, although “highly recommended” (Matter of Scalia v Scalia, 217 AD2d 780, 782), in a custody proceeding the appointment of a Law Guardian is a discretionary and not a mandatory function of a Family Court Judge (see, Richard D. v Wendy P., 47 NY2d 943). Considering the voluminous record produced at the fact-finding hearing, which included the testimony of close family members of the children, we conclude that the children were not prejudiced by the lack of a Law Guardian and that Family Court did not abuse its discretion in failing to appoint one (see, id.).

We also reject petitioner’s contention that Family Court erred in failing to interview the children. The decision to interview the children in a custody dispute, although preferable, is not mandatory, but rather lies within the discretion of the trial court (see, Matter of Lincoln v Lincoln, 24 NY2d 270; Matter of Mitchell v Mitchell, 209 AD2d 845, 847). Given the subject matter of the hearing evidence, particularly the evidence as to the abusive relationship between the parties, interviewing the children as to their preferences would have provided no additional useful information upon which to base a custody decision. Accordingly, we find no error in Family Court’s decision not to hold a Lincoln hearing.

Finally, we reject the contention that because Family Court failed to accord appropriate weight to the evidence of respondent’s abuse of petitioner, its award of sole custody to respondent lacks a sound and substantial basis in the record and is against the weight of the evidence. It is clear from Family Court’s decision that it gave due consideration to both parties’ propensity toward verbal and physical abuse and concluded that the evidence in that regard favored neither of them, effectively negating that issue. In fact, the evidence militating against an award of custody to either party was so compelling that Family Court was ultimately forced to base its determination on the mere fact that respondent had made some efforts toward becoming a better parent and could look to his parents as a source of assistance in raising the children. Apparently, Family Court could point to no similar circumstance favoring an award of sole custody to petitioner.

[*1023] Cardona, P. J., Spain, Carpinello and Graffeo, JJ., concur. Ordered that the order is affirmed, without costs.