Bellinger v. Bellinger

— Order unanimously modified, on the law, by deleting the provision granting temporary custody to petitioner and, as modified, affirmed, with costs. Memorandum: Family Court, based solely upon the oral arguments of counsel, improperly modified a judgment of divorce by temporarily changing custody of the infant child from the mother to the father. A court should not determine the custody of children on the basis of recriminating and controverted allegations, but only after an evidentiary hearing (see, Obey v Degling, 37 NY2d 768; Bowman v Bowman, 19 AD2d 857). (Appeal from order of Erie County Family Court, Mazur, J. — modify custody.) Present — Dillon, P. J., Doerr, Denman, Boomer and O’Donnell, JJ.