Berger v. Berger

45 A.D.2d 1000, 358 N.Y.S.2d 20, 1974 N.Y. App. Div. LEXIS 4236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 29, 1974
• Status: Published

Opinion

Judgment of the Supreme Court, Queens County, entered March 20, 1974, reversed insofar as appealed from, on the law and in the exercise of discretion, without costs, and the matter remitted to the Trial Justice for a hearing in accordance with the following memorandum. The parties stipulated that the issue of custody of their infant daughters would be determined by the court, that the parties and the children would submit to a psychiatric examination, that the psychiatrist’s report and recommendations could be utilized in an. advisory manner by the court on the issue of custody, and that the court would privately interview both children at the time of the hearing on custody at which time the parties would adduce such other relevant testimony as they desired. The court determined the issue of custody on the basis of the psychiatric report alone, without holding the hearing contemplated by the parties. The failure to hold a hearing was an improvident exercise of discretion under the cirr cumstances (Bender v. Bender, 33 A D 2d 546). Furthermore the record is completely barren of any proof regarding the circumstances of the parties or the needs of the infant daughter Shelly, to support the award of $40 per week as interim support for this child. Martuseello, Acting P. J., Latham, Cohalan, Brennan and Munder, JJ., concur.