Opinion
May 23, 1977
In a matrimonial action, plaintiff appeals from an order of the Supreme Court, Kings County, dated March 22, 1977, which, inter alia, modified the provisions of a prior judgment of divorce by awarding custody of the infant issue of the parties to the defendant-respondent. Order reversed, without costs or disbursements, and action remanded to Special Term for the taking of further proof concerning the best interests of the infant of the marriage, taking into consideration all factors relevant thereto, including, but not limited to, her imminent communion, and for the making of a new determination. In our view, the hearing at Special Term did not develop all of the factors to be considered in changing the custody of an eight-year-old child (she is now nine years of age) from that of her father to her mother within the guidelines of established authority (see Matter of Ebert v Ebert, 38 N.Y.2d 700, 702, 704; cf. Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 549; see, also, Matter of Gomez v Lozado, 40 N.Y.2d 839). Preferences for custody enunciated by infants below 13 years of age are not determinative of their best interests (Matter of Calder v Woolverton, 50 A.D.2d 587, affd 39 N.Y.2d 1042). Custody of a child is not a right exclusive to either parent (see Domestic Relations Law, §§ 70, 240), and custody may properly be awarded to a father where the evidence indicates that the best interests of the child will be served thereby (People ex rel. Kleppe v Cuisinier, 279 App. Div. 1037; Matter of Talmadge v Talmadge, 54 A.D.2d 581; La Veglia v La Veglia, 54 A.D.2d 727). At bar, the hearing failed to delve into all of the circumstances, educational, religious and health, which might affect the infant upon the change of her custody; these should be developed at the rehearing and evaluated within the caveats pronounced by the Court of Appeals (see Matter of Bennett v Jeffreys, supra, pp 549, 550). For the foregoing reasons, we hold that there should be a new hearing in this matter, and that, until the basic issue of the best interests of the infant are more fully examined, her custody shall continue as heretofore. Martuscello, J.P., Latham, Shapiro and O'Connor, JJ., concur.