| NY | Dec 31, 1954
Lead Opinion
After a fairly extensive hearing, at which the boy, then twelve, now fourteen, years old, testified, the Referee, appointed to hear and determine the matter, decided that the “ boy’s welfare ” called for modification of the decree in the respects requested, and the Appellate Division affirmed. There being ample evidence to support both the finding that the
Dissenting Opinion
(dissenting). I dissent for these reasons:
1. There is no finding and no testimony that enforcement of the religious training provision of the 1949 judgment (and of the 1938 agreement which it confirmed) would damage, or has damaged, the boy, mentally, physically or in any other way. All statements as to his becoming “ unhappy ” or “ mentally disturbed” or “ill-adjusted” are taken from the mother’s ex parte affidavit which is a mere pleading, not proof. Neither the mother, nor the boy nor anyone else gave any testimony as to any such mental hurt or disturbance. The Referee’s decision makes no such finding. The Referee amended the decree solely because, so he found, this twelve-year-old boy “ has a mind of his own ”, because failure to amend the decree “ would strip him of Ms independent judgment in matters of this Mnd ”, and because (so held the Referee) “neither the mother’s wishes nor the father’s wishes should control what is here to be done ”. True, at the end of the decision, the Referee said he was doing what “ is best for the boy ” but it is impossible to read the decision as based on anytMng except the boy’s own wishes and Ms supposedly mature and considered choice of a religion for himself. That was not within the Referee’s competency, in the face of a Supreme Court judgment as to the place and nature of Ms religious training, based on a- solemn prenuptial agreement.
2. The idea that a child of twelve is competent to make a choice binding on the Supreme Court and on Ms parents in such a matter is not only contrary to our decisions (see Bunim v. Bunim, 298 N.Y. 391" court="NY" date_filed="1949-01-13" href="https://app.midpage.ai/document/bunim-v-bunim-3623474?utm_source=webapp" opinion_id="3623474">298 N. Y. 391), and contrary to all human experience, but is directly opposed to the parens patriae public policy of New York (see Alcoholic Beverage Control Law, §§ 100, 126; Pari-mutuel Revenue Law [L. 1940, ch. 254], § 8; Domestic Relations Law, §§ 15-a, 72; Labor Law, § 130; Education Law, art. 65, part I; General City Law, § 18-b; Penal Law, §§ 484, 486; Personal Property Law, § 163; Debtor and Creditor Law, § 260; Judiciary Law, § 474; Correction Law, § 485; Vehicle and Traffic Law, § 20; N. Y. Const., art. VI, § 18; Mental
3. This sort of prenuptial agreement is enforcible like any other, unless and until its enforcement is shown to be harmful to the child. “ Agreements between parents for a particular sort of religious upbringing have in general been held valid in this country ” (Weinberger v. Van Hessen, 260 N.Y. 294" court="NY" date_filed="1932-11-22" href="https://app.midpage.ai/document/weinberger-v-van-hessen-3597752?utm_source=webapp" opinion_id="3597752">260 N. Y. 294, 298). Particularly must this be so when the agreement has been confirmed by, and written into, a judgment.
4. Although the child’s welfare is a paramount consideration in every custody case, we cannot close our eyes to fundamental principles as to judgments and agreements, and we cannot forget ancient maxims denying equitable relief to suitors whose hands are unclean. Respondent failed to prove that an amendment to the decree was suggested by anything except the boy’s own desires. She did prove affirmatively that she herself had created this troublesome position by violating not only her solemn agreement, but the plain condition under which custody was decreed to her.
Lewis, Ch. J., Dye, Fuld, Froessel and Van Voorhis, JJ., concur in Per Curiam opinion; Desmond, J., dissents in an opinion in which Conway, J., concurs.
Order affirmed.