Obey v. Degling

Decision Date08 July 1975
Citation375 N.Y.S.2d 91,37 N.Y.2d 768
Parties, 337 N.E.2d 601 P. Maureen OBEY, Respondent, v. Robert G. DEGLING, Appellant.
CourtNew York Court of Appeals Court of Appeals

Lawrence A. Schulz and Herbert H. Blumberg, Buffalo, for appellant.

Mark G. Hirschorn and Herbert M. Siegel, Buffalo, for respondent.

PER CURIAM.

Appellant father appeals from an order of the Appellate Division, 46 A.D.2d 731, 360 N.Y.S.2d 746 which affirmed an order of the Family Court of Erie County, Inter alia, awarding permanent custody of one of the children of the parties to the respondent mother.

When the parties were divorced by judgment of the Supreme Court, Monroe County, entered December 30, 1970, in an action instituted by respondent, the custody of their son and daughter, the infant issue of the marriage, was awarded to the mother, with visitation rights to the father as set forth in a separation agreement executed the previous November. Thereafter the father kept the son in Pennsylvania, in violation of the custody provision of said judgment, and instituted a habeas corpus proceeding in York County, Pennsylvania, which resulted in an order dated April 26, 1972 awarding custody of said child to the mother. In a second habeas corpus proceeding instituted in York County by the father, the order dated August 8, 1973, after summarization, stated: 'Putting this together, under all these circumstances, we feel that the boy's preference is decisive and we do hereby award custody to the father.' Although the mother appeared in both Pennsylvania proceedings, no appeal was taken from the order therein.

This proceeding, under subdivision (b) of section 651 of the Family Court Act and seeking the vesting of custody of the son in the mother, was instituted by an order to show cause dated November 26, 1973 and returnable December 19, 1973. For purposes of this proceeding, the son was kept by the mother in New York in violation of an agreement that she would return him to the father after the 'Thanksgiving visitation in 1973.' On December 7, the parents and child had an interview in chambers with a Family Court Judge of Erie County and were examined by that court's psychiatric clinic. With counsel, an unsuccessful effort was made to settle the controversy. On December 17, the father removed the son from the State. On the return day, the father did not personally appear but his attorney moved to vacate the order to show cause, a rather lengthy colloquy took place between the attorneys and the Family Court Judge, various decrees relating to custody were received in evidence and the testimony of the mother was taken, bearing on those proceedings but not in respect to the child's welfare. The Judge observed in his memorandum that the father had prevented 'a full hearing.'

In a custody proceeding arising out of a dispute between divorced parents, the first and paramount concern of the court is and must be the welfare and the interests of the child (Domestic Relations Law, § 70; Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 271--272, 299 N.Y.S.2d 842, 247 N.E.2d 659; Finlay v. Finlay, 240 N.Y. 429, 433--434, 148 N.E. 624; see Family Ct. Act, § 651, subd. (b)). Generally, a determination of that issue should be made only after a full and plenary hearing and inquiry (Bowman v. Bowman, 19 A.D.2d 857, 244 N.Y.S.2d 38; People ex rel. Cachelin v. Cachelin, 18 A.D.2d 1057, 238 N.Y.S.2d 869; Glasser v. Gluckstern, 14 A.D.2d 525; Matter of Uhlan v. Uhlan, 283 App.Div. 1013, 131 N.Y.S.2d 98; Fernandez v. Fernandez, 282 App.Div. 1043, 126 N.Y.S.2d 255; 15 N.Y.Jur. Domestic Relatio (Rev.), § 348, p. 581; cf. Matter of Jewish Child Care Ass'n of N.Y. (Sanders), 5 N.Y.2d 222, 228, 183 N.Y.S.2d 65, 156 N.E.2d 700).

Insofar as the matter is to be remitted for further proceedings, it is well to repeat with emphasis certain well-established principles in this field of the law which deserves the utmost attention. First of all, the full faith and credit clause does not apply to custody decrees and the responsibility of courts for the welfare of infants transcends the rule of comity (Matter of Berlin v. Berlin, 21 N.Y.2d 371, 376, 288 N.Y.S.2d 44, 235 N.E.2d 109, mot. to amend remittitur granted 21 N.Y.2d 970, 290 N.Y.S.2d 196, 237 N.E.2d 358, cert. den. 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111; Matter of Bachman v. Mejias, 1 N.Y.2d 575, 580, 581, 154 N.Y.S.2d 903, 136 N.E.2d 866; Matter of Bull (Hellman), 266 App.Div. 290, 42 N.Y.S.2d 53, affd. 291 N.Y. 792, 53 N.E.2d 368).

There has been no showing that the mother is an unfit parent or that she is less fit than at the time of the divorce decree. Custody of children should be established on a long-term basis, wherever possible; children should not be shuttled back and forth between divorced parents merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian (Matter of Lang v. Lang, 9 A.D.2d 401, 409, 193 N.Y.S.2d 763, affd. 7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166...

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