Miller, J., dissents and votes to reverse the order appealed
from and to remit the matter to the Family Court, Putnam County, for further proceedings, with the following memorandum, with which Pizzuto, J., concurs: Measured by the most liberal standards governing determinations of "voluntariness,” the mother’s actions on February 2, 1991, fail to support the majority’s conclusion that she voluntarily transferred custody of her two infant children by a handwritten note, particularly under the circumstances of its execution. The note simply read:
*521"Dennis Moorehead has reverse custody (all visitation, etc.,) included of our children as of 2/2/91. "Gina Moorehead”. Moreover, my review of the record fails to reveal the "evidence” referred to by the majority of several factors it relies on in support of the Family Court’s custody award to the father. Indeed, the record is devoid of evidence regarding the parties’ relative ability to provide for the physical, intellectual, and moral welfare of the children, or even their relative financial circumstances. Therefore, I would remit the issue of custody to the Family Court for an appropriate, full and complete, hearing on custody, wherein a Law Guardian should represent the children and assure that essential evidence will be adduced.
The record reveals that before Mr. and Mrs. Moorehead separated, the father spent more and more time away from home, and increasingly spent the night with "friends”. When, in July 1990 the father moved in with his girlfriend, he agreed to have the children remain with their mother, and at no time before February 1991 did he seek custody of them. After his departure, between July 1990 and September 1990 he saw the children only two or three times a month. It was only in September 1990 that the father began to take the children overnight for visitation—although the visits were scheduled for every other weekend, and were not infrequently canceled by him. The record further demonstrates that the father gave the mother little or no financial support from October 1990 to January 1991. It was during this period that the father quit his job with the Putnam County Sheriff’s Office because he "didn’t like [it]”. Although he subsequently enrolled in a course training to be an emergency room technician, he later dropped out of that program as well. Meanwhile, the mother worked full-time as a secretary, relying on her modest salary and help from her own father for the support of her children.
On January 3, 1990, the mother obtained a temporary order of support, directing the father to pay her $154 a week in child support. Notwithstanding this order, the father paid her only $160 during the entire month of January 1991. The mother testified that she was already financially and emotionally drained when the father called to cancel once again his overnight visitation with the children scheduled for February 2, 1991. At her wits’ end, the mother drove the two children to their father’s home and demanded that he "take them for the *522night like [he was] supposed to”—that, indeed, he "take some responsibility” as the children’s father, because she couldn’t "do it all” herself. The father in essence refused to accept the children unless the mother wrote a note granting him "reverse custody”—which, in anger and exasperation, she did. On the following day, the father, invoking the note, refused to return the children, and demanded that she turn over their clothing (which, anticipating only an overnight stay, she had not brought with them). Immediately thereafter, and just before the final support proceeding was scheduled to come on for a hearing, the father sued for custody, and simultaneously filed a child abuse complaint against the mother. The ensuing child protective investigation was dismissed as without foundation—although it resulted for a time in the mother’s being restricted to limited, supervised, visitation with her children.
It is well established, as the majority notes, that where a de facto transfer of custody has been accomplished "improperly” (e.g., by kidnapping or "self-help”), "there might be valid social reasons for discounting the importance which would otherwise [attach] to the maintenance of stability in the child’s life (cf., Matter of Nehra v Uhlar, 43 NY2d 242, supra). ” (Supra, at 519.) There can be no serious question that the removal of these children from their mother was "improper”: the father abandoned his family, moved in with his girlfriend, visited his children infrequently, did not exercise visitation when he was scheduled to, provided essentially no financial support for seven months, and then, when his wife was strained to the breaking point, pressured her into granting him "reverse custody.” That the father’s abandonment of his family, and his failure to assume responsibility for the children’s support or even for their psychological and physical needs, were responsible for the mother’s exhaustion and frustration is a fact entirely ignored by the majority. Under these circumstances, the mother’s relinquishment of her children cannot be considered "voluntary.” Indeed, it is clear that the mother did not understand or intend that the note that she hastily scrawled and signed, at the insistence of her husband, did in fact transfer permanent custody to him, because, among other things, she dropped the children off unequipped for anything but an overnight stay, and she endeavored on the following day to pick them up again.
The majority’s conclusion that the mother transferred custody voluntarily ignores the clear mandate of the Court of Appeals and the Legislature that special scrutiny be accorded all agreements between spouses, to ensure that they have *523been entered into with the utmost of good faith (see, Christian v Christian, 42 NY2d 63; Golding v Golding, 176 AD2d 20; Domestic Relations Law § 236 [B] [3]). Agreements to transfer custody clearly are entitled to the highest possible degree of scrutiny. The majority acknowledges that the testimony as to the voluntariness of the mother’s renunciation of custody is "equivocal”. Indeed, that transfer would not satisfy even the minimal requirements of ordinary contract law as a voluntary good-faith transaction.
It is worthy of note that in routine adoption proceedings, a natural mother has 30 days to change her mind (see, Carrieri, Practice Commentaries, McKinney’s Cons Laws of NY, Book 52A, Social Services Law § 384, at 522; Matter of Ruth "J” v Beaudoin, 55 AD2d 52; Matter of Janet G. v New York Foundling Hosp., 94 Misc 2d 133; Matter of Natural Parents of "Nicky” v Dumpson, 81 Misc 2d 132). Yet the majority will not allow this mother to reconsider her rash gesture, despite her fitness as a parent, and despite the fact that she was driven to her desperate act by the husband who is now profiting by it.
Were this record not lacking in other respects, I would urge that physical custody should be restored to the mother, because she was the parent with whom the children were originally placed by mutual consent (see, Eschbach v Eschbach, 56 NY2d 167; Matter of Sullivan v Sullivan, 190 AD2d 852; Matter of Schouten v Schouten, 155 AD2d 461, 462-463), because she had been, throughout the children’s life, the constant, nurturing parent, and because the father had defied legal process, in, for example, failing to pay court-ordered support (see, Friederwitzer v Friederwitzer, 55 NY2d 89, 94). Moreover, the Probation Department deemed the issue of which parent should have physical custody too close to call, and the court-appointed Law Guardian emphatically urged that the children be returned to their mother. It should be noted that the mother has apparently taken advantage of the liberal visitation accorded her by the Family Court’s order, and she remains a strong presence in the children’s lives.
However, in view of the Family Court’s failure to elicit evidence in regard to factors critical to the determination of custody—including the psychological bonding of the children, and the parties’ relative ability to provide for their moral, educational, intellectual, and financial wellbeing (see, Koppenhoefer v Koppenhoefer, 159 AD2d 113; Porges v Porges, 63 AD2d 712, 713)—I would remit for a new custody hearing. At that hearing, although the children’s own preferences are not *524controlling, they are now of an age when they may articulate their wishes, which should be weighed in the balance (see, e.g., Klat v Klat, 176 AD2d 922). Because I agree with the majority’s concern that the stability of a custodial arrangement of such significant duration not be lightly disturbed, I would not transfer the children’s custody without considering their present psychological, intellectual, and social needs. Therefore, the children’s best interest requires that a new hearing be held, exploring for the first time the essential factors relevant to their custody.