261 A.D. 904 | N.Y. App. Div. | 1941
In an action for separation brought by the appellant-wife against the respondent-husband, the appellant was granted a decree of separation. The judgment, which was entered October 24, 1940, awarded to the plaintiff the custody of the only child, the issue of the marriage, then one year old, with the right of visitation to the defendant on Saturdays or Sundays from one-thirty p. m. until five p. m. By order to show cause dated November 18, 1940, before a justice other than the one who tried the case, the defendant sought and secured an amendment to the judgment so that he was granted the entire custody of the child one day each week and legal holidays from one p. m. to five-thirty p. m. From such order the plaintiff appeals. Order reversed on the law and the facts, with ten dollars costs and disbursements, and motion to amend judgment denied, with ten dollars costs. It was an improper exercise of the court’s discretion to accept jurisdiction under the circumstances. (Powers v. Powers, 119 App. Div. 436.) In addition, no substantial change of circumstances was established. The custodial provisions in the modified judgment are not for the best interests of a child of such tender years. It may be that as the child grows older the respondent will be entitled to partial custody, but such division of custody at this time would be bound to interfere with the child’s routine and would be detrimental to it. Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.
