Lamky v. Lamky

Holbrook, J.

{dissenting). This writer has read the transcript on remand and the determination of the trial judge to the effect that the child should be awarded to the mother because of the child’s age and because of the facts brought out at the hearing. *24The opinion of Judge Bronson and Judge Levin would appear at first blush to be correct. On remand the trial judge did not determine in so many words that the best interests of the child required a transfer of custody from the father to the mother. This, to my mind, is the criterion or the test to be applied in every case involving custody of children. Realizing that we hear chancery cases de novo I am unwilling to substitute my opinion for that of the trial judge and still unwilling to accept the finding of the trial judge which appears to be based solely upon the age of the child and other facts which have to deal with the health of the mother. I am compelled to dissent. I would remand again to the trial court to take further testimony as to which parent should have the custody, taking into consideration the best interests of the child. Upon remand, testimony should be taken as to the ability of each parent to care for the child and the attentiveness given the child by each parent as well as any other matter dealing with facts bearing upon custody.