Opinion
October 23, 1967
Order of the Supreme Court, Westchester County, dated February 6, 1967, reversed, on the law, without costs, and matter remitted to the Special Term for a hearing on the issues as indicated herein and for a new determination. No questions of fact were considered on this appeal. Whether a parent with custody of a child may change her own and the child's domicile from this State to another and thus affect fixed visitation rights must be determined by the criterion of the child's health and welfare. In this case the papers of the mother who seeks the removal relief are sparse, but they do raise questions of the child's welfare from a physical health standpoint as well as from an economic standpoint. A hearing should be held at which the mother can particularize the details of their proposed change of domicile; and at which she can specify the child's health needs and document them with medical proofs. Affidavits alone are insufficient to determine the questions ( Matter of Hicks v. Bridges, 2 A.D.2d 335, 340). Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.