Jaeger v. Ward

128 A.D.2d 530, 512 N.Y.S.2d 463, 1987 N.Y. App. Div. LEXIS 44220

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1987
• Status: Published

Opinion

In a habeas corpus proceeding, the mother appeals from (1) a decision of the Family Court, Suffolk County (Hurley, J.), dated December 3, 1984, and (2) an order of the same court, dated August 6, 1985, which, after a hearing, granted the petitioner father permanent custody of the parties’ three children.

Ordered that the appeal from the decision dated December 3, 1984 is dismissed, without costs or disbursements, as no appeal lies from a decision; and it is further,

Ordered that the order is affirmed, without costs or disbursements.

It is well established that the preeminent concern in child custody matters is the best interest of the child (see, Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89). Inasmuch as neither parent has a prima facie right to custody (see, Domestic Relations Law §§ 70, 240), the court must conduct a comprehensive hearing, and carefully consider all applicable factors, in determining the best interest of the child (see, Eschbach v Eschbach, supra, at 171-174; State ex rel. Hathaway v Baker, 103 AD2d 762). The court’s determination, rendered after a full evidentiary hearing, is entitled to great weight and should not be set aside where it is in conformity with the evidence (see, Matter of Louise E. S. v W. Stephen S., 64 NY2d 946, 947; Eschbach v Eschbach, supra, at 174; Ira K. v Frances K., 115 AD2d 699). After a review of the hearing record, we agree with the hearing court that the best interests of the parties’ children will be served by awarding custody to the petitioner father. Mangano, J. P., Bracken, Brown and Spatt, JJ., concur.