In re Earle

26 A.D.2d 897, 274 N.Y.S.2d 429, 1966 N.Y. App. Div. LEXIS 3234

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 1966
• Status: Published

Opinion

Judgment unanimously reversed on the law and facts with costs, writ dismissed, and custody of the child awarded to the respondent, Marjorie R. Earle, with reasonble visitation privileges accorded the petitioner. If the parties are unable to agree as to the details of such visitation rights, they shall be delineated by appropriate order of the Wayne County Family Court. Memorandum: In view of the affectionate and conscientious care and attention given the child and a brother and sister in the home of the respondent mother and the child’s excellent progress and adjustment clearly evidenced by Ms school record and the testimony of his school principal, it would not be in the best interest of the child to take him from the mother and award custody to the father requiring supervision and control for the greater part of the time by the paternal grandmother. The decision of the Family Court recites only that it is based on a -review of the testimony and reports of the investigations by the County Department of Social Welfare. While one report contained a charge by the petitioner of an improper relationship maintained by the appellant, no evidence was adduced by petitioner on the hearing to establish such a charge and no opportunity was afforded the appellant after the report was given the court to challenge its truthfulness. ( See Kesseler v. Kesseler, 10 N Y 2d 445.) The determination of the Family Court Judge was contrary to the weight of the evidence. (Appeal from judgment of Wayne Family Court awarding custody of child to father.) Present — Bastow, J. P., Goldman, Henry, Del Vecchio and Marsh, JJ.