Opinion
January 27, 1959
On the defendant-appellant's application to enlarge his right of visitation of the child as provided by the judgment in the separation action entered in 1954, the primary concern of the court is the interest and welfare of the child. We consider that the mutual recriminations of the parties which tend to keep uppermost their own matrimonial controversy and to submerge the child's interest, preclude adequate consideration of this basic problem on affidavits. A careful examination of the facts concerning the present needs and requirements of the child and the present problem of providing for his welfare within the best available possibilities, ought to be made by the court itself with the parties personally before it. The child, a boy, is now 6 years old; and one of the problems is whether his normal growth and development would be promoted by enlarged contact with his father. On this question the father's present attitude toward the child; his present disposition to help him as well as the actual record of his failure to contribute financially toward the child's support have a relevance to the question of the child's welfare. The mother's actual course of management of the child while in her sole custody has equal relevance. Whether the fresh inquiry results in a decision to continue the present arrangement for custody and visitation, or a decision to alter it, the court should have the benefit of a full examination of the facts in reaching a well-advised conclusion. Order unanimously reversed on the law and on the facts, without costs, and the motion remitted to Special Term for a hearing, in accordance with the above memorandum opinion.
Concur — Botein, P.J., M.M. Frank, Valente, McNally and Bergan, JJ.