Keating v. KeatingKeating v. Keating
Lead Opinion
— In an action in which the parties were divorced by judgment dated January 21, 1982, the plaintiff wife appeals from an order of the Supreme Court, Suffolk County (Willen, J.), dated October 14, 1987, which granted the defendant’s cross motion for modification of the parties’ stipulation by transferring custody of the children from the plaintiff to him.
Ordered that the order is reversed, on the facts, with costs,
The parties were married in New York on August 26, 1972. After residing in Dix Hills, Long Island, with the plaintiff wife’s parents for approximately one year, the parties moved to New Hampshire, where they resided until they separated in 1981. Three children were born of the marriage, Kendra, Kevin and Bryan, whose ages are presently 15,12 and 8 years, respectively. The children have resided continuously with the plaintiff since 1981.
On June 24, 1982, the parties entered into a "permanent stipulation” which provided, inter alia, that the plaintiff was to have physical custody of the children. In 1982, after verbally informing the defendant that she intended to leave New Hаmpshire, the plaintiff returned to New York with the children and moved into her parents’ residence in Dix Hills. As of August 1983 the defendant relocated permanently in North Carolina, where he presently resides with his second wife and their two infant children. In 1983, the parties entered into a stipulation which, inter alia, refined the terms and conditions of the defendant’s visitation in light of the parties’ new residences. Although in 1982 the New Hampshire Superior Court found that the plaintiff was interfering with the defendant’s visitation, neither in the 1983 stipulation, nor at any time prior to its execution, had the defendant sought to modify the parties’ agreement that the plaintiff was to retain physical custody of the children.
In 1984, after the plaintiff moved successfully to compel the payment of arrears in excess of $11,000, the defendant instituted an action in New Hampshire seeking custody of the children. Although a hearing was held in 1985, the court ultimately dismissed the action, determining that New Hampshire no longer maintained any connection with the children. In December 1985 the plaintiff commenced the proceeding at bar in which she sought arrears exceeding $20,000. The defendant cross-moved for an order awarding him custody of the children. After a hearing, the Supreme Court, Suffolk County —ignoring the recommendations of the guardian ad litem— found, inter alia, that the plaintiff had been interfering with the defendant’s visitation, and modified the parties’ stipulation by awarding custody of Kevin and Bryan to the defendant. Kendra, who was then 14 years old, was to remain with her mother in New York. The plaintiff now appeals, arguing, inter alia, that the court’s findings with respect to the best
There can, of course, be no dispute that any determination with respect to the alteration of a custody arrangement — here, one of long-standing duration entered into with the defendant’s acquiescence — must be rendered with the best interests of the children as the paramount consideration (see, Domestic Relations Law §§ 70, 240; Friederwitzer v Friederwitzer,
It is notable, initially, that the record is bereft of evidence which indicates that the defendant — here seeking custody responsively by cross motion — is the superior or preferred custodial parent. In fact, the parties themselves manifested an entirely contrary perception of their respective parenting
Nor, as suggested in the report of the guardian ad litem, is there evidence which indicates that an alteration of the parties’ custodial arrangement will enhance the welfare of the children (see, Friederwitzer v Friederwitzer, supra at 94-95; Matter of Ebert v Ebert,
Although the defendant produced no expert witness at the hearing, the Supreme Court, in rendering its findings, chose to ignore key testimony provided by the plaintiff’s psychologist and instead relied upon testimony adduced in a 1985 New Hampshire proceeding, supplied by a psychologist who, in April of 1985, spent a total of one hour examining two of the parties’ three children. The transcript of the New Hampshire proceeding further reveals that this psychologist last inter
There exists, moreover, a question with regard to whether the defendant would be available to provide the children with the degree of attention and care to which they have grown accustomed. Indeed, this court has recently noted that, "[consideration must also be given to the availability of a parent to tend to the children’s needs and to participate in their development. Custody options which allow for the direct care and guidance of children by a parent rather than by third parties are naturally preferred” (Jacobs v Jacobs,
Nor do we concur in the Supreme Court’s finding that the record with respect to the plaintiff’s alleged interference with visitation creates a factual predicate sustaining an alteration of the plaintiff’s status as custodial parent. Although the Supreme Court credited, in toto, the defendant’s allegations— disputed by the plaintiff — regarding the alleged obstruction of his visitation, the record, when reviewed dispassionately, is inconsistent with the claim of systematic and unyielding interference advanced by the defendant. Morеover, it appears that much of the acrimony surrounding the transfer of custody prior to the defendant’s periods of visitation can be attributed to the defendant’s decision to relocate in North Carolina. For example, while a dispute arose with respect to whether the children — one of whom was under six years old at the time — should be permitted to fly unaccompanied to North Carolina, the record reflects that the plaintiff’s reluctance to
Further, the record does not support the Supreme Court’s conclusion that the plaintiff embarked upon a campaign calculated to poison the children’s relationship with the defendant and that she literally employed them as "collection agents” by involving them in monetary disputes between her and the defendant. Indeed, when questioned during the in camera interviews regarding the plaintiff’s alleged discussion of financial matters and comments regarding the defendant, the children’s responses failed to support the defendant’s claims that the plaintiff had spoken derisively of him or had persistently involved the children in disputes concerning money. Although Kendra and Kevin did recall — after the court specifically mentioned it — an incident involving Kendra’s demand that the defendant purchase an expensive pocketbook for her, Kendra also spontaneously and unequivocally recounted that the plaintiff had always encouraged her and her brothers to love the defendant.
Additionally, the Supreme Court’s characterization of the plaintiff as consistently involving the children in her disputes with the defendant over money omits reference to the plaintiff’s allegations that the defendant had repeatedly failed to discharge his financial obligations under the parties’ stipulation, which was determined by the New Hampshire Court to have resulted in accumulated arrears of approximately $11,000, as well as arrears in tutoring payments for the children.
Further, with respect to the plaintiff’s relocation with the children to New York from New Hampshire in July of 1982 the defendant himself testified that it was understood — and indeed discussed during the negotiation of the parties’ June 24, 1982, stipulation — that the plaintiff would eventually relocate in New York, where, it should be noted, she neither concealеd herself and the children from him nor denied him access to them (cf., Clarke v Clarke,
We note, furthermore, that the Supreme Court’s memorandum decision contains references to the plaintiffs personality which appear to imply that she is afflicted with certain psychological deficits tending to negate her fitness as a custodial parent. The record, however, reveals that the principal source of this dubious commentary was the defense counsel’s cross-examination of the plaintiffs psychologist, who, it should be noted, rejected any suggestion of pathology in the plaintiffs behavioral patterns and testified, in substance, that the plaintiffs behavior reflected the normal rаnge of concerns preoccupying any parent under the circumstances. Also unsupported by the record in our view is the Supreme Court’s determination that the children were not "well cared for”, and that the plaintiff "lacked the requisite fitness to raise the children”, findings contradicted by the evidence, as reflected by the guardian ad litem’s report, in which the guardian stated that, "despite substantial direct examination and cross-examination there was nothing to substantially detract from [plaintiff’s] abilities as a mother”. Moreover, on three sеparate occasions the guardian’s report specifically stated that the children were "well cared for” and cited this finding as a factor underlying his recommendation that the plaintiff retain custody of the children.
Also of significance in balancing the parties’ respective abilities to assume the role of primary custodian is the plaintiff’s testimony that the defendant on numerous occasions had physically assaulted her, in consequence of which the plaintiff sought and was granted an order of protection in 1981. Although the defendаnt himself conceded that he had struck the
Although it is our view that the order appealed from represents an improvident exercise of discretion which should be set aside, we remind both parties that they are to abide by the provisions of their stipulations with regard to support, visitation and matters pertaining to custody of the children. Kooper, J. P., Sullivan and Harwood, JJ., concur.
Dissenting Opinion
dissents and votes to affirm the order with the following memorandum: The majority seeks to disregard the extensive hearing held in this matter and substitute its own judgment for that of the Trial Judge. I respectfully disagree with the majority decision and would vote to affirm the order of the trial court which transferred custody of the two youngest children from the plaintiff to the defendant.
It would appear that the majority has assumed certain facts to be true even though they were sharply disputed at the trial. As an example, the majority suggests that the plaintiff moved the children from New Hampshire "after verbally informing the defendant that she intended to leave New Hampshire” (at 676). In fact, however, this version of the facts was sharply disputed by the defendant, who related how the plaintiff had absconded with the children in August of 1982. Moreover, the New Hampshire court, after a hearing, found the plaintiff to be in contempt for refusing to allow the defendant visitation and for removing the children from the State without consulting with the defendant first. In addition, two years later, in 1984, the New Hampshire court issued а second contempt order against the plaintiff for her continuing efforts to disturb the defendant’s "right of access to his children”. The order repeated the observation made by the New Hampshire court in 1982 that the plaintiff had "not dealt in good faith throughout this entire custody/visitation issue”.
In determining whether a custody award should be modi
In Friederwitzer v Friederwitzer (
Since the best interests of the children lie in being nurtured and guided by both of their natural parents (see, Daghir v Daghir,
In the instant case the trial court made a careful and
Thus, it has been shown that the plaintiff had a long and virtually uncontested history of disrupting the defendant’s visitation rights. In addition, there was ample evidence — for example, the incest article — that the plaintiff was subverting the children’s love for their father. The plaintiff was unable to produce any evidence of similar efforts on the part of the defendant. Thus, viewing the plaintiff’s actions as a whole, it is clear that there has been a change of circumstances sufficient to justify modification of the original custodial arrangement (see, Matter of Ebert v Ebert,
The majority seems to find it significant that the parties had originally stipulated to award custody to the plaintiff, and that this original stipulation is therefore somehow forever written in stone. Although it has often been held that priority should be given to the first award of custody, whether made by a court or through stipulation of the parties (Friederwitzer v Friederwitzer, supra; Walden v Walden, supra), an award pursuant to a voluntary agreement between the parties is entitled to less weight than an award resulting from the trial court’s judgment (Friederwitzer v Friederwitzer, supra), since the latter represents a considered determination based upon all of the factors involved. In any event, this factor is certainly not determinative of the issue (Walden v Walden, supra), especially in a case such as this where the plaintiff shows such a contemptuous disregard for the agreement and for court orders. Indeed, the testimony at the hearing was to the effect that when the plaintiff moved to New York with the children, she told the defendant that the visitаtion agreement no longer applied.
In addition, the majority refers to the apparent preferences of the children to reside with their mother, as stated in the in camera interviews. While the expressed preference of a child
The majority also places great stock in the testimony of the plaintiffs hired expert and tends to denigrate the opinions of the only experts who had dealings with both parties and the children. The plaintiffs expert examined only the plaintiff, the children and the maternal grandparents, and never examined the defendant or his current wife. Thus, the plaintiff was able to concеal vital information from him, and he was unable to substantiate many of the claims made by the plaintiff. He purportedly verified some of the claims by talking to the plaintiffs parents, a source of obviously dubious value. On the other hand, the only two individuals who were independent of the parties, Dr. Derby, a psychologist appointed by the New Hampshire court, and Mr. Bianco, the guardian ad litem appointed by the New Hampshire court, both recommended in 1985 that the defendant be given custody of the children. Both men had been appointed by the courts in 1981 and had had extensive contact with both parties and the children.
This court recently reversed a trial court order that changed custody of the four children of a marriage from the mother to the father (see, Skolnick v Skolnick,
In the instant case the mother had a long, virtually uncontested history of disrupting the father’s visitation rights. In addition, there was ample evidence that the mother was subverting the children’s love for their father. The mother produced no evidence of similar efforts on the part of the father. Thus, in contrast to the situation in Skolnick, the evidence indicated that the visitation problems were due
The trial court did not award custody of Kendra to the defendant because it did not want to tell a 14-year-old girl where she had to live. The plaintiff contends that the children should not have been separated from each other. Although the courts usually avoid separating siblings in order to encourage close familial relationships (see, Matter of Ebert v Ebert, supra, at 703), whеn it is clear that the best interests of each child lies with separate parents, a split custody decree is proper (see, Matter of Estes v Estes,
The defendant works full time, and most of the time his second wife would be home with the children. The plaintiff argues that this is tantamount to giving custody to a third person. However, it is clear that the defendant is intensely interested in his children and their upbringing. Although he lived in North Carolina, he kept in frequent, even daily, telephone communication with them. In addition, he flew the children to North Carolina as much as possible, despite the formidable obstaсles the plaintiff posed. For example, she required that he fly to LaGuardia Airport rather than Newark to pick up the children and bring them back. Another time he flew to Newark to pick up the children for Thanksgiving vacation, but the plaintiff did not bring the children, and the defendant had to fly back to North Carolina without them. It is clear that the defendant is a concerned and loving parent and will provide direct care and guidance to the children (see, Jacobs v Jacobs,
In contrast, the plaintiff also works, leaving the children in the hands of her mother, who was always making derogatory remarks about the defendant to the children. The plaintiff herself frequently complained in front of the children about the defendant’s alleged failure to give her enough money. One time the defendant came to the house to pick up the children and the plaintiff berated him in the driveway demanding money while the children were standing there. In addition, the plaintiff and the children reside in the maternal grandparents’ house, portions of which are leased to rent-paying tenants. All in all, the current living circumstances of the children can hardly be called conducive to their general physical
Thus, the trial court herein clearly considered the best interests of the children after thoroughly reviewing their circumstances when it determined that their interests would best be served by a change in custody (see, Friederwitzer v Friederwitzer, supra; Matter of Nehra v Uhlar, supra).