Aberbach v. Aberbach , 33 N.Y.2d 592 ( 1973 )

Memorandum.

The order of the Appellate Division should be affirmed, without costs and without prejudice to reopening the proceeding or to bringing another proceeding based upon the change in circumstances since the determination at Special Term. The parties consented to referral to the family counseling unit for a confidential report to the court. With consent, Special Term properly relied in part on the confidential reports in awarding custody of the children of the parties to the mother (see Kesseler v. Kesseler, 10 N Y 2d 445, 448-450, 454). Moreover, accepting the principle expressed in section 240 of the Domestic Relations Law, under the circumstances of this case, Special Term properly required the father to show that the mother was “ less fit ” as a parent before the court would change custody that she had retained for so long. The courts should be reluctant to transfer custody of young children who have been with their mother since birth, or to permit separate custody of siblings (see 15 N. Y. Jur., Domestic Relations, §§ 353, 354). Although there may have been unnecessary interference by the court with the presentation of evidence by counsel for the father, there was certainly no violation of due process,

Chief Judge Fuld and Judges Burke, Breitel, Jasen, G-abrieuli, Jones and Wachtler concur in memorandum.

Order affirmed, etc.