Thiele v. Thiele

We agree with the disposition of the learned Justice at Special Term in his findings that neither party established a cause of action by a fair preponderance of credible evidence and that, accordingly, there was no justification for granting a decree of separation to either party. However, with respect to the care and custody of the children, we think that in view of their tender age, it would be to their best interests to have custody awarded to the mother with adequate and reasonable rights of visitation to the father and to his parents. In the present circumstances, support for the children should be continued at $75 per week. In the event of a reconciliation, an appropriate application for modification may be made to the Special Term. Judgment modified as set forth herein and, as so modified, affirmed. Present — Glennon, J. P., Dore, Cohn, Callahan and Shientag, JJ.; Glennon, J., dissents in part and votes to reverse and grant judgment of separation in favor of defendant; Shientag, J., dissents in part and votes to reverse and grant judgment of separation in favor of plaintiff and otherwise concurs with the majority. Settle order on notice.