Opinion
April 8, 1999
Appeal from the Supreme Court (Ingraham, J.).
After commencement of an action for divorce, the parties entered into an open-court stipulation which provided, among other things, that defendant would have custody of their three children and plaintiff would have a specific visitation schedule. In September 1997, after holding an ex parte, in camera hearing with the youngest child, Supreme Court, sua sponte, modified the visitation schedule. Plaintiff appealed and this Court reversed, holding that the court acted outside its authority in modifying the stipulation and erred in interviewing the child without the presence of the Law Guardian ( 252 A.D.2d 695).
Thereafter, the Law Guardian moved for modification of the visitation schedule solely with respect to the youngest child. The other children apparently reached agreements with plaintiff regarding their own visitation schedules. Plaintiff opposed the motion and cross-moved, requesting that Supreme Court recuse itself based on the prior ex parte conversation with the child and subsequent sua sponte order modifying the stipulated schedule, which was reversed. On the return date, defendant, who did not oppose the motion, and plaintiff requested a hearing on the proposed modification. Supreme Court denied plaintiff's cross motion for recusal and held a Lincoln hearing ( see, Matter of Lincoln v. Lincoln, 24 N.Y.2d 270) with the child in the presence of his Law Guardian. Without holding a plenary hearing, the court again modified the visitation schedule by ordering that the child "shall visit with his father at such times and places as [the child] shall elect". Plaintiff appeals.
In our view, Supreme Court erred in modifying the order without first conducting a full hearings To warrant modification of an order fixing visitation, the applicant "must demonstrate a change in circumstances * * * warranting modification of the visitation order to advance the best interest of the child" ( Matter of Reese v. Jones, 249 A.D.2d 676, 677 [citations omitted]; see, Matter of Baker v. Ratoon, 251 A.D.2d 921, 923; Matter of Brocher v. Brocher, 213 A.D.2d 544, lv denied 86 N.Y.2d 701; Matter of McGreevy v. McGreevy, 92 A.D.2d 1077, 1078, lv denied 60 N.Y.2d 553). However, "[a] determination of the children's best interests should only be made after a full evidentiary hearing unless there is sufficient information before the court to enable it to undertake an independent comprehensive review of the children's best interests" ( Matter of Kenneth H. v. Barbara G., 256 A.D.2d 1029).
Here, other than the conflicts described and wishes expressed by the child during the Lincoln hearing, Supreme Court obtained no information from either parent before modifying the visitation schedule to one set by the child. Although a child's desires should be considered in establishing a visitation schedule, such wishes may be influenced by either parent and may not be in the best interest of the child ( see, Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94; see also, Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 249). Without a hearing, Supreme Court did not have sufficient information before it upon which to make its determination, despite the child's articulated position during the Lincoln interview.
We reject plaintiff's assertion that Supreme Court should have recused itself, there being no showing of bias ( see, People v. Judkins, 210 A.D.2d 523, 524, lv denied 85 N.Y.2d 939; see generally, Matter of Kidder [Classic Airport Share-Ride — Commissioner of Labor], 255 A.D.2d 852, 853). Moreover, an appellate reversal of a prior related determination by the Trial Judge does not alone constitute a showing of bias ( see, People v. Wilkins, 147 A.D.2d 729, 730, lv denied 73 N.Y.2d 1023).
Cardona, P. J., Crew III, Yesawich Jr. and Graffeo, JJ., concur.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted the motion for modification of the visitation order; said motion denied and matter remitted to the Supreme Court for a full hearing on the modification of visitation issue; and, as so modified, affirmed.