Mruzik v. Mruzik

57 A.D.2d 695, 395 N.Y.S.2d 546, 1977 N.Y. App. Div. LEXIS 11730

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1977
• Status: Published

Opinion

Judgment unanimously modified, without costs, by reversing that portion which grants custody of the children of the parties to defendant and case remitted to Supreme Court, Erie County, for a plenary hearing on the issue of custody. Memorandum: From the record it appears that in awarding custody of the children to the defendant the court was moved by the plight of the wronged husband losing not only his wife but three children as well. Such consideration should not be determinative of the issue of custody. Following a divorce the primary question concerning custody of the children is which parent can make the best home and environment for them. The best interests of the children cannot be determined from a record almost exclusively devoted to establishing the elements of each party’s cause of action for divorce. The record contains insufficient evidence material to establishing which parent would provide the most suitable upbringing for the best interest of the children (Obey v Degling, 37 NY2d 768) and provides no adequate basis for an award of custody. (Appeal from judgment of Erie Supreme Court—custody.) Present—Marsh, P. J., Simons, Dillon, Goldman and Witmer, JJ.