Nierenberg v. Nierenberg

43 A.D.2d 717, 350 N.Y.S.2d 437, 1973 N.Y. App. Div. LEXIS 2875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1973
• Status: Published

Opinion

In two cross habeas corpus proceedings (on referral from the Supreme Court, Nassau County), petitioner Andrea Nierenberg appeals from so much of an order of the Family Court, Nassau County, entered March 29, 1973, as (1) awarded custody of the child of the parties, Jay Nierenberg, to respondent Benjamin Barney Nierenberg and (2) granted visitation rights to said petitioner. Order reversed insofar as appealed from, on the law and the facts, without costs, custody of the child awarded to petitioner Andrea Joan Nierenberg and proceedings remitted to the Family Court for determination of visitation rights to be granted to’respondent Benjamin Barney Nierenberg. Custody of this child of tender years has been in the mother pursuant to a separation agreement which became incorporated into a foreign decree of divorce in 1969. The Family Court specifically found the mother not to be unfit. We have reviewed the record and found that the mother is neither unfit nor less fit than the father. Under these circumstances, it was error for the Family Court to change custody to the father (Aberbach v. Aberbaeh, 33 N Y 2d 592; Matter of Lang v. Lang, 9 A D 2d 401, affd. 7NY2d 1029; People ex rel. Bruen v. Bruen, 38 A D 2d 725; Schuler v. Schuler, 29 A D 2d 669). Munder, Acting P. J., Martuscello, Shapiro, Brennan and Benjamin, JJ., concur.