People ex rel. Wasserberger v. Wasserberger — 34 N.Y.2d 660

Majority

p. 660

The People of the State of New York ex rel. Rhodia Wasserberger, on Behalf of Mark Wasserberger and Simon Wasserberger, Appellant, v. Edward Wasserberger, Respondent.

Argued February 20, 1974;

decided March 29, 1974.

p. 661

David W. Peck, Bernard Botein, Irving I. Erdheim, Leonard C. Shalleck and Arthur Kramer for appellant.

Bernard S. Meyer and Samuel G. Fredman for respondent.

Order affirmed, without costs but with disbursements to appellant, on opinion by then Presiding Justice Harold A. Stevens at the Appellate Division.

Concur: Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Rabin. Judge Jasen dissents and votes to reverse in the following opinion. Taking no part: Judge Stevens.

I dissent and vote to reverse for the reasons stated in the dissenting opinion at the Appellate Division. I would only add that while there is no prima facie right to custody in either parent, the age of a child is a relevant and important consideration in determining custody. Particularly where, as here, children of tender years are involved, the courts should give recognition to the fact that certain of the children’s needs may be better supplied by a mother’s care. In the case

Dissent

p. 662

before us, there is no finding that petitioner is an unfit mother and it is‘apparent that the children have her love and affection. In my opinion, the children’s best interests would be served by allowing them to remain with her.

Order affirmed, etc.