Opinion
April 10, 1967
Order of the Supreme Court, Kings County, dated January 16, 1967, reversed, on the law, without costs; appellant's motion (1) to vacate the order of said court dated December 30, 1966 adjudging him in contempt of court and (2) in effect, upon such vacatur, to deny respondent's previous motion to adjudge appellant in contempt granted; and proceeding remitted to the Special Term for an immediate hearing on the issue of custody of the infant daughter of the parties. Appellant is directed to produce the infant at such time and place as the Special Term may fix for such hearing. No questions of fact have been considered. In our opinion, while appellant's conduct at Special Term is not condonable, the basis for the punishment specified in the contempt order was a violation by the child's paternal grandfather, who by prior order of the court had been designated as the child's custodian. We are further of the opinion that, under the circumstances adduced, and in view of the death of the paternal grandfather-custodian, the interests of justice would best be served by an immediate custody hearing at which the respective rights of the parties may be determined de novo. Beldock, P.J., Christ, Rabin, Benjamin and Munder, JJ., concur.