Opinion
May 12, 1966
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Marsh, JJ.
Order unanimously reversed, with costs, and motion denied. Memorandum: By a judgment of separation dated March 11, 1957 custody of the four children of the marriage was granted to appellant mother with visitation privileges to the respondent father. Upon the father's motion to secure custody of the children, Special Term modified the judgment and granted custody of the two sons to the father. At the hearing held on this motion the court examined the children, Carol age 16, Michael age 14, Patricia age 13 and Robert age 11, and all of them definitely expressed a desire to continue to live as a family unit with their mother. There was no proof in the record of any change in circumstances during the nine years since the judgment, except that the children were nine years older. There is a complete absence of any showing that the mother is an unfit person to rear the children or that the children's welfare and best interests have suffered in any respect under her care. Under these circumstances it was an abuse of discretion to have changed custody of the sons and the provisions of the separation judgment, so far as it relates to the children, should in all respects be followed.