Opinion
November 24, 1986
Appeal from the Supreme Court, Suffolk County (Abrams, J.).
Ordered that the order is reversed insofar as appealed from, without costs or disbursements, and the case is remitted to the Supreme Court, Suffolk County, for a hearing on the issue of pendente lite custody, to be held forthwith. Custody shall be with the mother pending the hearing and new determination as to temporary custody.
Each party to this appeal seeks custody of the young child of the marriage during the pendency of this action for a divorce and ancillary relief. The Supreme Court, Suffolk County, without a hearing, issued an order directing the parties to share custody of the child during the action's pendency. As a general rule, it is error as a matter of law to make an order respecting custody based on controverted allegations without having had the benefit of a full hearing in order to resolve those factual issues which develop from conflicting affidavits (see, Obey v Degling, 37 N.Y.2d 768, 769-770; Bellinger v Bellinger, 109 A.D.2d 1104). In this case, the order under review does not constitute a final determination of the custody issue, but is merely an order made pendente lite. In some cases, a party claiming to be aggrieved by such an order, even if it was made without a hearing, will be required to seek an expeditious trial (see, Meltzer v Meltzer, 38 A.D.2d 522). Under the particular facts of this case, however, where the parties, in their affidavits, each accuse the other of being unfit to care for the now 20-month-old child, and where the matrimonial action has been commenced relatively recently, so that there is no realistic prospect for an expeditious trial, we find, as a matter of discretion, that a hearing should be held so as to allow the court to make a pendente lite custody determination based on a fuller record (see, e.g., Richman v Richman, 104 A.D.2d 934; cf. Crum v Crum, 122 A.D.2d 771). The hearing should, of course, focus on the issue of what custody arrangement would be in the best interest of the child. The hearing court should note that the current pendente lite custody arrangement may not be appropriate in view of the apparent animosity which exists between the parties (see, Braiman v Braiman, 44 N.Y.2d 584; Robinson v Robinson, 111 A.D.2d 316, 318). The hearing should take place forthwith. Thompson, J.P., Rubin, Lawrence and Kunzeman, JJ., concur.