Gomez v. Lozado , 40 N.Y.2d 839 ( 1976 )

Memorandum. Order of the Appellate Division reversed, without costs, and the proceeding remitted to the Family Court to review and conduct such additional hearings as may be advisable in light of the principles discussed in Matter of Bennett v Jeffreys (40 NY2d 543), decided herewith.

It should be noted that, in reversing, the Appellate Division affirmed expressly the findings of fact in the Family Court, finding both grandmother and father fit to have custody of the motherless child. The appellate court seems to have accorded a parental primacy which, as developed in the Bennett case (supra), is not as absolute as argued by the father. On the other hand, there are circumstances in this case which require re-evaluation by the Family Court despite its otherwise careful and thoughtful opinion. These circumstances relate to the comparative ages of the grandmother and the father, the legal inability of the grandmother to adopt the child, the fact that the child is in need of the services of a mental health clinic, and, as the grandmother testified, is doing poorly in school. The root of the child’s mental difficulties should be assessed, if that is practicable, in determining the best disposition for the child. The best interest of the child, therefore, would seem to require a greater exploration than has already been done.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, without costs, and matter remitted to the Family Court, Kings County, for further proceedings in accordance with the memorandum herein.