Phelps v. Phelps , 4 A.D.2d 801 ( 1957 )

Appeal from an order of a Special Term of the Supreme Court, Saratoga County. The order changes temporarily and until further hearing is had in October the custody provisions of a decree of divorce. A sufficient showing of a change in the capacity and disposition of the mother to care for the children has been made to justify re-examining the merits of the question of custody. The decree expressly provided for such re-examination. The plaintiff is in the military service and not able himself to care for the children but delegated this to his sister. The court considered the affidavits presented by both sides and examined the plaintiff, defendant, and plaintiff’s sister, informally but on the record, on material facts relevant to custody. Plaintiff’s counsel made no objection to this informal inquiry pursued by the court or to the court’s consideration of the report of the investigator appointed by him to examine conditions in both homes; nor did he ask to swear or cross-examine any witness. He now argues that the proceeding was not an adversary hearing. If on the adjourned day plaintiff requests the right to see any report or to swear and examine any witness whose report, affidavit or testimony is to be considered in determining the issue of custody, the right shall be allowed. We think the temporary alteration of the judgment is justified on the record. Order affirmed, without costs. Poster, P. J., Bergan, Halpern and Gibson, JJ., concur.