Bayne v. Roberts , 112 A.D.2d 775 ( 1985 )

Order unanimously reversed, on the law, without costs, and matter remitted to Supreme court, Monroe County, for a hearing, in accordance with the following memorandum: The mother appeals from the denial without a hearing of her application for modification of a prior order granting custody of the parties’ two children to the father. When the parties were divorced in 1978 they agreed that the mother should have custody. In 1981, after a hearing, the father gained custody, primarily, according to the court’s written decision, because of the instability in the mother’s life caused by the imminent breakup of her second marriage. The mother in her application to regain custody claims that she is happily remarried and can now provide the children with a stable home. It was error to deny her application without a hearing. Inasmuch as neither parent has a prima facie right to custody (see, Domestic Relations Law §§ 70, 240) and the primary concern in a custody proceeding is the best interests of the children (see, Domestic Relations Law §§ 70, 240; Friederwitzer v Friederwitzer, 55 NY2d 89), the. issue of custody here can only be resolved after a full hearing (see generally, Friederwitzer v Friederwitzer, supra; State ex rel. Hathaway v Baker, 103 AD2d 762; Anstett v Wolcott, 94 AD2d 692). (Appeal from order of Supreme Court, Monroe County, Siracuse, J. — modify custody.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and Green, JJ.