Soto v. Soto

57 A.D.2d 818, 395 N.Y.S.2d 169, 1977 N.Y. App. Div. LEXIS 12009

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1977
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County, entered October 7, 1976, making provision as to custody of the children of the parties, is unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs and without disbursements, and vacated, and the matter remanded for a hearing and a new determination as to custody. In proceedings relating to the custody of children, "the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly.” (Domestic Relations Law, § 70.) In the present case, the Special Term determined that the custody of the five children of the parties should be alternated between the father and the mother every two months. Difficult as the situation is, we cannot accept that such alternation, with its inevitable disruption of the lives and schooling of the children, is in the best interest of the children or will best promote their welfare and happiness. We need hardly add our agreement with Special Term that the children must be safeguarded from excessive beating. Concur — Lupiano, J. P., Silver-man, Evans and Markewich, JJ.