Lavelle v. Lavelle , 120 N.Y.S.2d 881 ( 1953 )

Appeal by plaintiff from (1) so much of a judgment of separation as grants defendant a right of visitation and temporary custody of the children of the parties; (2) so much of the findings of fact and conclusions of law made by the court which support the afore-mentioned part of the judgment; and (3) the refusal of the court to make the findings and conclusions, and the judgment, which were submitted by plaintiff. Judgment, insofar as'appealed from, modified on the law and the facts by striking therefrom the last ordering paragraph, and matter remitted to Special Term for a hearing as to whether defendant is a fit person to have exclusive custody, although temporary, of the children, and for the making ©f a new provision with respect to visitation and temporary custody. As so modified, the judgment is unanimously affirmed, with costs to appellant. The subject of the fitness of the defendant was not explored at the inquest. However, so far as appears from the record, there is a serious question as to whether he is a fit person to have exclusive custody of the children, even for temporary periods of time. Appeal from the other items set forth in the notice of appeal dismissed, without costs, as not appealable. Present — Nolan, P. J. Carswell, Wenzel, Schmidt and Beldock, JJ. [See post, p. 1037.]