Opinion
May 5, 1975
In an action in which a judgment was entered granting the plaintiff wife a divorce, she appeals from so much of the said judgment of the Supreme Court, Kings County, dated January 23, 1974, as granted custody of the four infant children of the parties to Josephine Corso, their paternal grandmother and directed that support payments be made to the said Josephine Corso. Judgment reversed insofar as appealed from, on the law, without costs, and action remanded to Special Term for a hearing and a new determination, with findings of fact, with regard to custody of the four infant children. Josephine Corso shall retain custody of the four infant children pending the new determination; defendant is directed to pay the sum of $75 per week to Josephine Corso for support of the children pending said new determination. Plaintiff was granted a divorce upon the ground of cruel and inhuman treatment. Custody of the four children of the marriage, who range in age from 7 to 13 years, was granted to the paternal grandmother, who had cared for them for some time prior to the divorce. The paternal grandmother is approximately 66 years of age; the paternal grandfather is 75 years of age. There was no testimony at the trial concerning the grandmother's health or financial position. Additionally, the trial court did not consult with the children. A full and comprehensive hearing should be held before the issue of custody is determined. The court's primary concern is the best interests of the children. However, since the children have been with the grandmother for some time, it is in their best interest to remain with her pending the new determination to be made at the completion of the hearing. We additionally note that the Trial Justice should make specific findings concerning the issue of custody. Such findings are not incorporated into the judgment under review. Gulotta, P.J., Rabin, Hopkins and Martuscello, JJ., concur; Shapiro, J., dissents and votes to affirm.