Lockwood v. Jagiello

24 A.D.2d 544, 261 N.Y.S.2d 420, 1965 N.Y. App. Div. LEXIS 3795

Opinion

Second and third decretal paragraphs of judgment unanimously reversed on the law and facts and ease remitted and referred to Family Court of Oneida County to determine questions of permanent custody and support, otherwise judgment insofar as appealed from affirmed, with costs to respondent. Memorandum: Upon this record, we have grave doubt as to the fitness of either party to have custody of either child. There is no prima facie right to custody in either parent and such direction for custody of the children must be given as in the court’s discretion, justice requires having regard to the circumstances of the case and of the parties and to the best interests of the children. (Domestic Relations Law, § 240.) The best interests of the child is the predominant criterion, to which, in the event of conflict, all others must be made to defer. (Siegel, Practice Commentary, McKinney’s Cons. Laws of N. Y., Book 14, Domestic Relations Law, § 240, p. 363.) We, therefore, refer the ease to Family Court of Oneida County for a full hearing and exploration with the aid of such investigations by and reports from social, psychiatric and other services as are available in Family Court and which the court may deem to be helpful. (Appeal from certain parts of a judgment of Oneida Trial Term granting custody of children to plaintiff and counsel fees.) Present — Bastow, J. P., Goldman, Henry and Del Vecchio, JJ.