Fourth Department – Family Court: Werner v. Kenney

Listen to this article

New York State Supreme Court, Appellate Division, Fourth Judicial Department

Family Court — Hearsay — Lincoln hearing

Werner v. Kenney

CAF 24-02028

Appealed from Family Court, Monroe County

Background: The petitioner mother and the attorney for the child both appeal from the denial of the mother’s petition for sole custody and granting the father’s cross-claim for civil contempt. The mother introduced ex parte testimony that the child had given in a prior Family Court Article 8 proceeding brought by the mother against the father. The child had testified about an argument he had with his father.

uling: The Appellate Division affirmed. The court held that it was in error for the court to refuse to consider the evidence as the father’s attorney had no objection for its admission. However, the error is harmless. The testimony concerned a heated argument wherein the father punched a pillow but did not threaten or touch the child. Additional testimony related to disagreements between the two regarding the child quitting certain activities and refusing to go forward with a religious ceremony. The evidence regarding the father’s response does not constitute a failure to exercise a minimum degree of care or of abuse.

Charles P. Inclima, of Inclima Law Firm, for the petitioner-appellant; Scott A. Otis, attorney for the child, pro se; Michael Steinberg for the respondent-respondent.

Oral argument video