Opinion
December 30, 1942.
In a habeas corpus proceeding, order awarding custody of the two children of appellant and respondent to the respondent modified on the facts by striking therefrom the first three paragraphs or findings and by substituting in lieu thereof the following: "First: The best interests of the children will be subserved by their custody with the respondent until the trial and judgment in the pending divorce action to which the relator and respondent are parties;" and by striking therefrom the sixth paragraph and by substituting in lieu thereof the following: " Sixth: That the relator is granted the right to visit the children while in the custody of the respondent on each and every Sunday between the hours of two and six p.m." As so modified, the order is affirmed, without costs, and without prejudice to the institution of a new proceeding upon termination of and determination in the pending divorce action. The writ might well have been sustained at the outset of the hearings when it was conceded that the respondent had forcibly taken the children from the custody of the appellant. Inasmuch, however, as the hearings proceeded on the merits and there is proof that the best interests of the children will be subserved by their present custody pending determination in the divorce action, the result will not be disturbed. The proof does not warrant the finding that the lives of the children while in the custody of appellant were in every way unsuitable, unfit and improper. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.