Dintruff v. McGreevy

Memorandum. Although the children of the parties had expressed a wish to live with the father, we agree with the Appellate Division that custody of the two infant children should remain with the mother. We believe that custody of children should be established on a long-term basis and should not be changed merely because a child at some time states that he desires it. While a child’s view should be considered to ascertain his attitude and to lead to relevant facts, it should not be determinative. If it were, then all a court would be required to decide is whether his preference of parent is voluntary and untainted and then follow the child’s wish. This would certainly not be conducive to the proper raising of children. The matters last discussed are particularly highlighted by the foreseeable changes that occur in children as they mature. There are periodic reorientations toward one or another parent, and this is especially true when young parents are involved and one or both remarries. The subjective changes in the children or the objective changes in the family relationships should not be followed automatically by changes in custody. The rearing of a child requires greater stability than a roller-coaster treatment of custody. (Matter of Lang v. Lang, 9 A D 2d 401, affd. 7 N Y 2d 1029; Matter of Wout v. Wout, 32 A D 2d 709.) Where, as here, the children have for the past eight years lived with the mother and the court found her well capable of providing for and bringing up the children, a change in custody [889] is not warranted merely because the children have expressed a desire for a change. We are not insensitive to the warm and close relationship existing between the father and the children. Fortunately for the children, as well as the father, the original custody decree grants liberal visitation rights to the father which should provide for a further development of the existing relationship. Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur. Order aErmed, without costs, in a memorandum.