
    The People of the State of New York ex rel. Charles Charbonneau, Respondent, v. Sandra L. Charbonneau, Appellant.
   Sweeney, J.

Appeal from a judgment of the 'Supreme Court at Special Term, entered February 25, 1970 in Fulton County, which sustained, without a hearing, a writ of habeas corpus. This controversy involves the custody of the two children of petitioner and the respondent. The children have been at all times with the respondent mother with visitation rights to the petitioner father. On October 3, 1969 letters of guardianship were issued by the Surrogate to petitioner in a proceeding in which both petitioner and respondent sought letters. In a comprehensive opinion the Surrogate determined, after a hearing, that the best interests of the infants would be served by granting petitioner control of their person and property. He granted a stay, however, to permit respondent to file an appeal. It has never been perfected, and on February 10, 1970 petitioner obtained a writ of habeas corpus which was the proper procedure to enforce a guardian’s right to custody. (See Matter of Lee, 220 N. Y. 532, 539.) On February 23, 1970 the writ was sustained without a hearing. It is from that determination that this appeal has been taken. ‘Special Term concluded that the Surrogate had already passed on all of the issues presented to him; he determined that a hearing was not necessary; and awarded the custody of the children to petitioner. Questions of custody are for the Supreme Court in its sound discretion (Domestic Relations Law, §§ 70, 240). Its concern must be directed to what is in the childrens’ best interests. Although Special Term possessed discretion in determining custody, we conclude that it erred in relying on the fact that a hearing had been held by the Surrogate in the guardianship proceeding. Such action deprived the Special Term of the opportunity to hear and see the witnesses. This removed an essential element necessary for the exercise of independent discretion. Judgment reversed, on the law and the facts, without costs, and proceeding remitted to Special Term for a hearing de novo. Reynolds, J. P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Sweeney, J.  