Opinion
February 8, 1971
In consolidated habeas corpus proceedings for custody of the three children of the parties, the father appeals from (1) a judgment of the Supreme Court, Queens County, entered October 28, 1970, which (a) granted custody of the children to the mother, sustaining her writ, but awarding the father visitation rights, and (b) dismissed the father's writs, and (2) an order of the same court entered November 19, 1970, which denied the father's motion for a rehearing upon additional facts. Judgment modified, on the facts, by striking therefrom the first decretal paragraph, which sustained the mother's writ and granted custody of the parties' son to the mother, and substituting therefor a provision dismissing the mother's writ and placing custody of the son in the father; by striking therefrom the second decretal paragraph, which dismissed the father's writs, and substituting therefor a provision that the father's writ with respect to the older daughter is dismissed and that the mother is awarded custody of the older daughter, subject to rights of visitation granted to the father, and by striking therefrom so much of the third, fourth, fifth and sixth decretal paragraphs as provides for or pertains to visitation of the father with the son. As so modified, judgment affirmed insofar as appealed from, without costs; and (1) the proceeding as to the younger daughter is remanded to the Special Term for a new hearing and a new determination as to her, which hearing should be preceded by an examination to determine whether she is mentally defective within the meaning of the Mental Hygiene Law, with appointment of the physician or physicians who shall examine the child to be made by the Special Term upon motion by either party, and (2) the proceeding as to the son is also remanded to the Special Term for a determination of the visitation rights of the mother as to the son. Appeal from order dismissed, without costs, as academic in view of the determination herein on the appeal from the judgment. The parties were married in 1950 and have three children, namely, two girls aged 16 and 13, respectively, and a nine-year-old son. Marital difficulties arose and in April, 1968 the father moved, leaving the children with his wife, although there was no formal separation agreement. The father contributed to the upkeep of the house, paid his wife $56 per week and exercised liberal visitation rights. The son has spent considerable time with his father, staying overnight 145 times in 1969 and 150 times in 1970 as of October 5, including a month in the summer. Without his wife's consent, the father took custody of the son in September, 1970, enrolled him in a new school and arranged for him to stay after class with another family until his return from work. The father has flexible business hours and does not need to go to his office every day. His psychiatrist deems him presently capable of having custody of his children. The younger daughter has had psychological problems since January, 1969, has been seen by several psychiatrists and had to be withdrawn from school in March, 1970, having become a disciplinary problem. In determining the question of custody, we must be guided by section 70 Dom. Rel. of the Domestic Relations Law, which provides, inter alia,: "In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly" (emphasis added). (See, also, Finlay v. Finlay 240 N.Y. 429.) In our opinion, the best interests of the son will be served by allowing him to remain with his father. The older daughter is a high school honor student and, in our opinion, it would be in her best interest to remain with her mother. The younger daughter, confined at Elmhurst General Hospital at the time of the hearing, was released shortly thereafter. She appears to be in need of treatment and a new hearing should be held to determine how her best interests would be served. Preceding such hearing, an examination should be had to determine whether she is mentally defective within the meaning of the Mental Hygiene Law (Family Ct. Act, § 234). Such power also lies in the Supreme Court as a court of general jurisdiction (N.Y. Const., art. VI, § 7, subds. a, c; Kagen v. Kagen, 21 N.Y.2d 532). Munder, Acting P.J., Martuscello, Shapiro, Christ and Benjamin, JJ., concur.