Opinion
February 28, 1972
Judgment, Supreme Court, Bronx County, entered on January 3, 1972, dismissing complaint of husband plaintiff in an action for divorce, and awarding custody of child to wife defendant, unanimously modified, on the law and the facts, to the extent of deleting custody award, and remitting the matter to Special Term for the purpose of more extensive testimony in depth, directed to the sole issue of custody, i.e., the relative fitness of the parents and the ultimate welfare of the child; and, as so modified, the judgment affirmed, without costs and without disbursements. Pending the determination to be made by Special Term, the stay heretofore granted by McNally, J. is to continue. In view of the above disposition, the appeal from the order entered December 2, 1971, is unanimously dismissd as academic, without costs and without disbursements. In remitting the matter, we rely also on the representations of counsel on oral argument that both will welcome the good offices of the Family Counselling Unit, which is hereby requested to make relevant investigation and inquiry, with due diligence, and to make use of such psychological, psychiatric or medical assistance as in its judgment may be helpful. One of the difficulties in reviewing the present record is the inconclusive quality of the evidence as to alleged injuries suffered by this infant and the cause thereof. In respect to this crucial issue the expertise of the Family Counselling Unit is indicated.
Concur — Stevens, P.J., McGivern, Kupferman and Tilzer, JJ.