Opinion
June 19, 1953.
Appeal from Supreme Court, New York County.
On this record we find that plaintiff was as much a contributing cause to the actual separation as defendant; and accordingly should not have received a decree of legal separation in her favor.
However, the plaintiff, mother, is not shown to be unfit to have custody of the child while the parties are actually separated and living apart, and because of the child's present extremely tender age, the child may remain in the mother's custody for the present with ample rights of visitation to the father and with direction to the father to pay $35 a week solely for the support, maintenance and education of the child pending bona fide efforts by both sides to achieve reconciliation.
On the facts disclosed, we think there is no sufficient reason why the parties should not resume their marital relationship and that can be achieved if both are willing and reasonable and both should be reasonable. Especially in view of the child of the marriage, the parents, parties to this action, should make every reasonable effort to reconcile their differences and give the child a home with the fostering love and care of both parents. If neither is willing, neither is entitled to a separation in law though they remain apart in fact. If the parties are reconciled, there is no need of any further litigation. If either party unreasonably refuses to be reconciled and restore the matrimonial relationship, the other party may move or institute litigation for such relief as the facts warrant.
Accordingly, the decree appealed from should be modified, without costs, by reversing that part of the decree which grants the wife a separation as prayed for, and directs the husband to pay her $75 a week for her support in part; and by directing instead that the husband pay $35 a week solely for the support, maintenance and education of the child; affirming, however, that
part of the decree which gives the mother present custody of the child; and as so modified, the decree as to custody is affirmed. Settle order.
Peck, P.J., Glennon, Dore, Cohn and Callahan, JJ., concur.
Order unanimously modified in accordance with the opinion herein and, as so modified, affirmed, without costs. Settle order on notice.