Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Appeal by plaintiff from so much of a judgment of the Supreme Court, granted in an action for separation, as awarded to defendant husband custody of the children of the parties' marriage on alternate week ends, for four days during each Christmas vacation and each Easter vacation, and for two weeks during defendant's Summer vacation, all subject to certain conditions specified in the judgment. The children are a boy now eight and one-half years old and a daughter of six and one-half years. The provisions here contested seem to us to represent the sound and reasonable exercise of the trial court's discretion. Indeed, the record is devoid of any proof from which could be inferred anything inimical to the children's welfare in the custody arrangements provided. On the contrary, the plaintiff, who was the only witness, testified that, with her consent, the defendant had taken the children for one week during the Summer then past, had seen them "Nearly every Sunday" and had taken them "on some weekends", and had been "faithful" in seeing them; that she felt the children would be safe with him and that the children loved their father "as well as" they loved her. Although, in cases such as this, decisions upon like factual situations do not always constitute helpful precedents, it may be noted that similar (and in some respects more extensive) custodial rights were awarded the husband in Matter of Freed v. Freed (133 N.Y.S.2d 849, affd. 284 App. Div. 892, affd. 309 N.Y. 668), which involved a daughter who was seven and a son who was three when the first custodial order (subsequently modified) was made; in Matter of Stokowski v. Lumet ( 17 Misc.2d 735, mod. 11 A.D.2d 652), in which the children were sons of seven years and eight years; and in Cappiello v. Cappiello ( 4 A.D.2d 959), which concerned a daughter of five and one-half years. Judgment unanimously affirmed, without costs.