Opinion
January 28, 1969
Judgment entered March 14, 1968, in this habeas corpus proceeding by a former husband against his former wife with respect to custody of their infant son, is modified on the law, the facts and in the exercise of discretion to the extent of vacating that portion of the judgment awarding custody to respondent, and remanding the proceeding to Special Term for further hearings before the Justice who presided at the trial of this cause. Such hearing shall be restricted to any changed circumstances with respect to the home life of the parties. It is asserted in the brief and was stated on argument that respondent, to whom custody was awarded, has now married a person who appeared as a witness at the trial. The court correctly noted that the best interest of the child was of paramount concern (see Domestic Relations Law, § 70). Since the alleged marriage occurred subsequent to the trial and determination, the present living conditions surrounding the infant are a matter for proper inquiry. This court observes that in its opinion the counsel fee allowed is more than ample to cover the further proceeding directed herein. As so modified the judgment appealed from is otherwise affirmed, without costs to either party.
Concur — Stevens, P.J., Eager, Tilzer and McNally, JJ.