Opinion
May 6, 1974
In an action for divorce, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, entered October 25, 1973, as, without a hearing, denied his motion for custody of the parties' two minor children pendente lite and granted such custody to defendant, with visitation rights to plaintiff. Order reversed insofar as appealed from, without costs, and motion remanded to Special Term for a hearing and a new determination. The affirmations of plaintiff, alleging that defendant is an alcoholic, neglected her children and exposed them to immoral conditions, on the basis of a number of specified incidents and much uncontradicted evidence, were sufficient to require a hearing on the proper custody of the five- and six-year-old children of the parties. Denial of the motion without a hearing and without any reason given therefor was an improvident exercise of discretion. Martuscello, Acting P.J., Christ, Brennan, Benjamin and Munder, JJ., concur.