Opinion
July 9, 1964
Judgment, entered June 2, 1964, misdescribed as an order (CPLR, 411, 7010) in a special proceeding in the nature of habeas corpus under article 70 of the Civil Practice Law and Rules, providing for the custody and rights of visitation between the married parents of two infant children of the marriage, unanimously reversed and vacated on the law, the facts, and in the exercise of discretion, without costs, and the proceeding remanded and referred for investigation, hearing, and determination to the Family Court, held in and for the County of Bronx, pursuant to subdivision (b) of section 115 and section 651 FCT of the Family Court Act. Pending such determination, but subject to the further order of the Family Court, the custody of the two children should remain in the father with full right of visitation in the mother during reasonable hours at the father's residence. In view of the factors of the mother's health and her imputed relationships it was not proper to determine the issues on the simple testimonial record before the hearing court. Nor are sister and brother to be separated, unless the necessity is clear. In this delicate family situation a sensitive investigation is required. The Family Court is equipped and competent to handle a matter of this nature. Settle order on notice.
Concur — Botein, P.J., Breitel, Valente, Stevens and Eager, JJ.