
    In the Matter of Esther W. Fleishman, Respondent, v. Richard Walters, Appellant.
   Judgment unanimously reversed on the law and facts, without costs, and matter remitted to Steuben County Family Court for a new hearing. Memorandum: Petitioner, who was separated from respondent in 1966, was granted custody of three of their children, Linda, Jeffrey and Suzanne, pursuant to a temporary protection order issued by the Steuben County Family Court on August 1, 1966 and a Mexican divorce decree issued May 31, 1967. The children lived with petitioner until May 11, 1971 when respondent, who had taken them for a visit, refused to return them. Petitioner then obtained a writ of habeas corpus and a hearing was held ini Family Court in October, 1970; testimony was taken from petitioner, respondent, and Linda. The parties stipulated that the Trial Judge could speak with Jeffrey and Suzanne privately and that a probation investigation could be utilized in arriving at a determination. Prior to the court’s decision which was made in January, 1971, Linda was married and the proceeding was terminated as to her. Based on the testimony at the hearing, .the private' conference and the probation investigation, the custody of Jeffrey and Suzanne was awarded to petitioner. In this contest between parents the prime concern of the courts is the welfare of the children (Matter of Lincoln v. Lincoln, 24 N Y 2d 270; People ex rel. Moody v. Moody, 36 A D 2d 627). In order to determine the best interests of the children, it is necessary to know the current circumstances of the parties. Twenty-three months having elapsed since the hearing was held, there should be a rehearing. Because of the particular facts in this case, if, on the rehearing, the Trial Judge holds a conference with the infants outside the presence of the parties, a stenographic record should be kept of it and a transcript thereof should be sealed and made available in case of appellate review. (Appeal from order of Steuben County Family Court awarding custody.) Present — Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.  