Opinion
July, 1935.
In a habeas corpus proceeding, brought by the mother to obtain from the father the custody of their two children now residing with their father in Syria, wherein the court, upon the papers presented to him, without examination or investigation, made an order directing that the father should return the children to the United States and to the mother within thirty days from the date of the service of a copy of said order, the order is reversed upon the law, without costs, and matter remitted to the Special Term to take proof and to determine as to the proper custody of the children. While the father undoubtedly agreed to return the children to this country at the end of a year, the best interest of the children is the first consideration, and it does not appear in this record that the mother would be able to care for these children if they were returned, even if the father continued to support them. Lazansky, P.J., Young, Hagarty, Carswell and Scudder, JJ., concur.