People ex rel. Mele v. Mele

26 A.D.2d 670, 272 N.Y.S.2d 445, 1966 N.Y. App. Div. LEXIS 3748

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1966
• Status: Published

Opinion

— In a habeas corpus proceeding to determine the custody of the parties’ four minor children, the respondent father appeals from a judgment of the Supreme Court, Nassau County, entered April 13, 1966, which sustained the writ, awarded custody to the petitioner mother, who now resides in Detroit, and granted other incidental relief. Judgment reversed on the law, without costs, and proceeding remitted to the Special Term for immediate proceedings consistent with this memorandum. A remission is required because: (1) the probation report from the Family Court, which the Justice had ordered, was utilized by him without the opportunity of examination being accorded to counsel; and no approval or stipulation was obtained permitting this report to be used confidentially by the court; (2) the examination of the children by the court in camera was done over appellant’s objection. What the probation report disclosed, what was said by the children, and the weight, if any, given by the Trial Justice to either the report or their statements are not apparent from the record. At such limited rehearing, the Special Term should disclose what information, if any, obtained from the probation report and the interview with the children, was relied upon by him for his determination. Thereafter, with respect to such information, counsel should be given an opportunity to introduce such additional evidence as they may be advised. Beldock, P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.