Cohen v. Cohen

70 A.D.2d 925, 417 N.Y.S.2d 755, 1979 N.Y. App. Div. LEXIS 12525

Opinions

— In a matrimonial action, the defendant husband appeals from an order of the Supreme Court, Kings County, dated December 6, 1978, which changed the prior arrangement of joint custody, and awarded plaintiff sole custody and child support. Order modified by deleting therefrom the provision awarding plaintiff child support. As so modified, order affirmed with costs to plaintiff and action remitted to Special Term for a hearing and a new determination as to child support in accordance herewith. Pending the new determination, defendant is to pay $50 per week as child support. The plaintiff satisfied the burden required to change the joint custody arrangement to sole custody. The evidence adduced substantiated her position that the best interests of the child would be served by granting her sole custody (see Matter of Calder v Woolverton, 50 AD2d 587, affd 39 NY2d 1042). The trial court did not err in failing to ascertain the wishes and desires of the child since he is of tender years (see Matter of Calder v Woolverton, supra; Matter of Ebert v Ebert, 38 NY2d 700). However, the court did err in determining the amount of support without ascertaining the needs of the child. Such a determination is necessary to establish the proper amount of child support. Titone, J. P., O’Connor and Hargett, JJ., concur.