Le Henaff v. Le Henaff , 20 A.D.2d 569 ( 1963 )

In a consolidated action, in which the husband and wife each seek a judicial separation from the other, the wife appeals from a judgment of the Supreme Court, Westchester County, rendered October 15, 1962 upon the opinion and decision of the court after a non jury trial, which inter alia: (a) granted the husband a separation from the wife upon the ground of her adultery; (b) awarded custody to him of the three infant children of the marriage; and (e) dismissed the wife’s complaint for a separation. Judgment modified on the law and the facts by striking out its fourth and fifth decretal paragraphs, relating to the children’s custody. As so modified, the judgment is affirmed, without costs; and the action is severed with respect to the issue as to the children’s custody and a new trial is granted limited to such issue. In view of the circumstances disclosed by the present record; the length of time which has elapsed since this action was tried in May, 1962; and the court’s failure to obtain from the children themselves an expression of their views and wishes, it is our opinion that the children’s best interests will be served by a new trial limited to the issue of their custody, and by a determination based on the current conditions relating to all the persons concerned. Since the children have attained an age of discretion, due regard should be given to their views and wishes. Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.