Opinion
May 9, 1972
Appeal from a judgment of Supreme Court, entered in Albany County, which dismissed a writ of habeas corpus after a hearing and awarded sole custody of the infant of the marriage to the father. The courts have twice determined the custody of this child on the merits, and both times adversely to the respondent. (Cf. Matter of Rodolfo "CC" v. Susan "CC", 37 A.D.2d 657.) The correctness of those decisions is fortified by the recommendation of the psychiatrist contained in the present record that the boy should stay with his mother. The only change of circumstances is the removal of the mother and child to Missouri made for valid (although noncompelling) reasons. While unfortunate, that alone does not mandate a change in custody. The fact that the boy preferred to stay with his father was before the court on the prior appeal. The father is a physician with the financial means to help implement the liberal visitation privileges he has enjoyed in the past although the boy's change in residence will necessarily require some modification of the court's prior order. Judgment reversed, on the law and the facts, with costs, and petition granted to the extent of directing that custody of the infant be returned to the appellant, and matter remitted to Supreme Court for the purpose of fixing the terms and conditions of visitation as to the infant. Herlihy, P.J., Greenblott and Simon, JJ., concur; Cooke and Kane, JJ., dissent and vote to affirm in the following memorandum by Cooke, J.: Two Trial Judges, who have most recently examined into this touching problem and who have been able to observe its ramifications much more closely, have each decided that respondent should have custody of the child. Regarding the judgment under review, the discretion of the Trial Justice, who found a change of circumstances adversely affecting the child's welfare and warranting a change in the established custody and for which there is support in the record, should not be disturbed.