Opinion
November 13, 1981
Appeal from the Oneida County Family Court, Pomilio, J.
Present — Simons, J.P., Callahan, Denman, Moule and Schnepp, JJ.
Order unanimously reversed, without costs, and matter remitted to Oneida County Family Court for further proceedings in accordance with the following memorandum: Family Court erred in summarily dismissing appellant's petition pursuant to article 6 of the Family Court Act in which he sought custody of his infant son. The divorce decree of the parties specifically provided that "all further questions relating to support, visitation and custody, or modification or enforcement of this Decree are referred to Family Court". Although there was a valid separation agreement, incorporated, but not merged, in the divorce decree, which awarded custody of the child to respondent, Family Court was not bound by its terms and its discretionary power remained unimpaired. The petition raised substantial questions of fact requiring a full hearing on the question of custody of the child (Matter of Braitsch v. Braitsch, 52 A.D.2d 1073).