70 A.D.2d 934 | N.Y. App. Div. | 1979
— In a habeas corpus proceeding to determine custody of a child, petitioner, the child’s father, appeals from a judgment of the Supreme Court, Kings County, dated March 7, 1979, which dismissed the proceeding and let custody remain with respondent, the child’s maternal grandfather. Judgment reversed, without costs or disbursements, and proceeding remitted to Special Term for a hearing, which shall be conducted before a different Judge, and a new determination. In this custody struggle between the father and maternal grandparents, the record indicates that the court gave controlling weight to the preference of the then 10-year-old child after conducting an in camera off-the-record interview with the child. The wishes of the child alone provided an inadequate basis for the court’s award of custody (see Bullotta v Bullotta, 43 AD2d 847). In a custody proceeding, the court must make "an enlightened, objective and independent evaluation of the circumstances” (Matter of Ehrlich v Ressner, 55 AD2d 953, 954). In addition, the failure to conduct the interview with the child on the record, especially where paramount importance was given to the child’s wishes, makes intelligent review by this court impossible (see Matter of Ehrlich v Ressner, supra, p 954). Finally, in light of the serious allegations of the parties against each other, it was error not to conduct a full and comprehensive hearing to resolve the many factual issues raised (see Corso v Corso, 48 AD2d 652). Mollen, P. J., Hopkins, Titone, O’Connor and Shapiro, JJ., concur.
