Opinion
November 21, 1988
Appeal from the Supreme Court, Westchester County (Ferraro, J.).
Ordered that the appeal from so much of the order entered June 24, 1987 as denied that branch of the husband's motion which was for expanded visitation is dismissed, without costs or disbursements, as that portion of the order was superseded by the order entered August 3, 1987, made upon reargument; and it is further,
Ordered that the order entered June 24, 1987 is otherwise reversed; and it is further,
Ordered that the order entered August 3, 1987 is reversed insofar as reviewed, without costs or disbursements, the provision of the order entered June 24, 1987, as denied that branch of the husband's motion which was for expanded visitation is vacated; and it is further,
Ordered that the matter is remitted to the Supreme Court, Westchester County, for a hearing and new determination in accordance herewith.
The primary concern in a custody proceeding is the best interests of the child (Domestic Relations Law § 240; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89). Inasmuch as both parents have alleged sufficient facts, which, if proven true, may warrant a change in custody, and neither parent has a prima facie right to custody (Domestic Relations Law §§ 240, 70), the issue of custody can only be resolved after a full and comprehensive hearing (Obey v. Degling, 37 N.Y.2d 768; Anstett v Wolcott, 94 A.D.2d 692).
Similarly, with respect to the question of visitation, the paramount consideration is the best interests of the child (Daghir v. Daghir, 82 A.D.2d 191, affd 56 N.Y.2d 938; Maggio v Maggio, 96 A.D.2d 579), and since both parents have alleged facts, which, if proven true, may, in the best interests of the child, warrant a change in visitation, a hearing on this issue is also required (see, Piro v. Piro, 82 A.D.2d 783; Kresnicka v Kresnicka, 48 A.D.2d 929). Thompson, J.P., Bracken, Brown and Sullivan, JJ., concur.