People ex rel. Schlanger v. Schlanger

8 A.D.2d 801, 187 N.Y.S.2d 921, 1959 N.Y. App. Div. LEXIS 7844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1959
• Status: Published

Opinion

Order appealed from unanimously reversed, on the law and on the facts, without costs. The record discloses that no testimony was taken; that the order was made on the basis of the confidential investigation conducted by the family counselling unit, the report of the psychologist, and other documentary matter. The discretion of the court in these matters is “a judicial discretion, not an uncontrolled one, and its exercise must have sound and substantial basis in the testimony.” (Bunim v. Bunim, 298 N. Y. 391, 393.) The matters in issue are remitted to the Special Term Justice who made the order appealed from for the purpose of specifying the grounds on which the order is to be based, bearing in mind that the reports of the family counselling unit and the psychologist are only an aid to the court and need not become part of the record. The final decision, of course, must be made by the court itself and not by any family counselling unit or psychologist. The court cannot abdicate its duty as an officer of the State judicial system. However, if such reports suggest a basis for the court’s action, that basis must be supplied in the record in competent or proper form. For example, avenues of inquiry may be opened up from information gleaned from the reports and such information may well form the basis of questions put to witnesses during the course of the proceeding. Concur — Breitel, J. P., Rabin, M. M. Frank, McNally and Stevens, JJ.