Opinion
October 28, 1968
In a habeas corpus proceeding, petitioner appeals from a judgment of the Family Court, Kings County, as resettled by an order of said court dated February 1, 1968, which judgment inter alia awarded custody of the parties' son to respondent, appellant's former husband. Judgment reversed, on the law, without costs, and new hearing granted, the new hearing to be held after the parties and their son undergo current psychiatric examinations. The findings of fact have not been affirmed. The writ was dismissed after a hearing in which appellant was denied an examination of psychiatric reports concerning herself, respondent and the son. Hence, the judgment must be reversed and a new hearing had ( Kesseler v. Kesseler, 10 N.Y.2d 445). In any event, we would remit the judgment because of the patent insufficiency of the hearing record. Though the mental health of the son was disputed, he was not interviewed by the trial court and did not testify. Instead, the parties gave hearsay evidence on that issue, as they did with respect to other serious matters in controversy. While common-law rules of evidence are not rigorously applied in proceedings before the Family Court, those rules are not to be altogether abandoned. Brennan, Acting P.J., Rabin, Hopkins and Benjamin, JJ., concur. Martuscello, J., not voting.