Opinion
November 23, 1981
In a matrimonial action in which the plaintiff wife was granted a divorce, the defendant father appeals from an order of the Family Court, Suffolk County (Mallon, J.), dated December 24, 1980, which, after a hearing, denied his motion to modify the divorce judgment by transferring custody of the children of the marriage to him. Order affirmed, without costs or disbursements. The defendant is directed to return Jason to the plaintiff by January 1, 1982. Other than the oldest child's preference, there was no change of circumstances, especially with respect to the crucial matter of the mother's fitness, to justify a modification of the custodial arrangements which the parties originally stipulated to as being in the best interest of the children. The oldest child's preference to reside with the father is not determinative (see Dintruff v. McGreevy, 34 N.Y.2d 887). "Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement" (Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 251; Matter of Austin v. Austin, 65 A.D.2d 903). We find the father, by withholding the children at the end of summer visitation, attempted by self-help to create an extraordinary circumstance, which will not be countenanced by this court. In any event, the period of time during which the father retained the oldest child (May, 1979 to date) and the youngest child (May, 1979 — Oct., 1979) does not constitute such an extended period of time as to deny the mother the right to regain custody. (See Matter of Nehra v. Ulhar, supra; cf. Matter of Bennett v Jefferys, 40 N.Y.2d 543; Matter of Bannister v. Bannister, 81 A.D.2d 913.) Hopkins, J.P., Mangano, Rabin and Cohalan, JJ., concur.