Opinion
December 29, 1970
Appeal from an order of the Family Court, Schoharie County, entered December 10, 1970, which awarded the custody of an infant, Wendy K. Gaukel to the respondent. Order reversed, on the law, with costs, and matter remitted to the Family Court for a determination based on the best interest of the child. The infant was born on March 11, 1966. On September 1, 1967 her parents entered into a separation agreement which provided that the infant would not be removed from the State of California without either the written consent of the other parent or court approval and custody was given to the mother with visitation rights to the father. On December 26, 1967 a final judgment of divorce was entered in California and the custody provisions of the separation agreement were incorporated therein. In December of 1969 the respondent discovered that the appellant had left her California residence leaving no forwarding address and in her absence and based upon substituted service a California court, by order dated August 24, 1970, modified the original custody provisions of the divorce so as to grant custody of the infant to the respondent and deny any visitation rights to the appellant pending further order of the court. In the present proceeding Family Court has given full faith and credit to the decrees of the California court. Pursuant to Matter of Berlin v. Berlin ( 21 N.Y.2d 371, mot. to amend remittitur granted, 21 N.Y.2d 970, cert. den. 393 U.S. 840) a hearing should have been held for the purpose of determining what disposition would be in the best interest of the child and a decree entered in accordance with such determination. (See, also, Matter of Bachman v. Mejias, 1 N.Y.2d 575.) Herlihy, P.J., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur.