282 A.D. 694 | N.Y. App. Div. | 1953
Order of the Official Referee unanimously reversed and the matters in issue are remitted to the Special Term for the taking of further testimony and such additional proof as may be indicated in order to determine a proper custodian of the infant daughter. On this record we are not satisfied that the mother has been shown to be an unfit custodian. Her habits were not shown to be tainted with immorality or other misconduct rendering her an unfit guardian for her twelve-year-old daughter. The other incidents involving direct relations with the daughter were not, on this record, conclusive as to neglect or impropriety. The proof offered was insufficient to establish that the incidents relied upon were part of a regular pattern. Moreover, we comment that generally in custody matters, such as this, Special Term should hear and finally determine the issues and they should not be referred. Pending disposition by Special Term the daughter shall remain in the custody of the father with the same rights of visitation and custody in the mother provided in the order of Special Term dated June 29, 1951, which provisions were to obtain pending the hearing and determination of the issues by the Official Referee. Settle order on notice. Present — Dore, J. P., Cohn, Callahan, Breitel and Bergan, JJ.