Stanat v. Stanat

OPINION OF THE COURT Asch, J. The parties to this action were married on June 24,1972, and their only child, a son, was born on November 26, 1977. Each is extremely well educated and each earns a substantial salary. Throughout the trial and on this appeal, both parties were engaged in a “tug of war” over the child with the infant being pulled in both directions. In their eagerness to obtain custody of the child, each of the litigants attempted to portray the other as being an unfit parent. They have only succeeded in convincing the court that the two are extremely hostile toward each other, incapable of living together, and incapable of working out mutual problems, especially that of the bringing up of the son they each profess to love. The transcript, covering 1,535 pages, is replete with conflicting testimony, both lay and professional, as to the qualities of the parties for parenting. The Judge, both patiently and painstakingly, presided for 18 days. After [115] observing the personalities and demeanor of the parties and their respective witnesses, he stated “each of the parties has engaged in and continued a deliberately hostile and verbally rude course of conduct designed to demean the other, create unhappiness and cause both mental and physical grief.” The court went on to grant dual divorces on the grounds of cruel and inhuman treatment. As to the custody issue, the court noted that immediately after Scott’s birth, the father established a very close relationship with his son. The court also recognized that both parties exhibited a different role of parenting from the other. As to the plaintiff wife, she had a reserved approach with emphasis placed on discipline. The husband’s was freer, less disciplined. The court stated that each had “positive qualities” and “complements the other’s shortcomings.” The court concluded that: “[I]n [this] light, each parent’s characterizations of the other’s lack of fitness and parental ability are overstated. The court is convinced that each parent is concerned for the child’s best interest and that each feels love and affection for the child * * * Upon balancing the parental approaches * * * it appears that plaintiff’s relationship with the child is the more positive one. The child’s overall growth and development will be more enhanced when exposed to the plaintiff and the environment created by her.” Defendant maintains that the court abused its discretion in awarding sole custody to the plaintiff wife albeit with liberal visitation privileges to the husband. Defendant is incorrect and the judgment should be affirmed. In reviewing the award of custody to one parent, each case must be determined on its own merits, the circumstances of the parties must be weighed and the best interests of the child is paramount. (Friederwitzer v Friederwitzer, 55 NY2d 89.) Here the court applied the appropriate criteria in arriving at its decision. It was faced with conflicting claims that the other was unfit. The court rejected these contentions and concluded that, although the parties utilized different approaches in child rearing, the setting, as established by the wife, would be of more benefit to the child. [116] The husband attempted to show that his wife was distant and as a result unfit during their son’s first 2xh years. The wife in her proof really does not dispute all of these accusations but explains that she could not be a mother 100% of the time because of medical problems. And there is support in the record to this effect. The husband’s claim of unfitness only refers to the period before divorce discussions were seriously entered into, i.e., March, 1980. After that, there is considerable testimony that the plaintiff is indeed a loving and caring mother. Also, there is the testimony of plaintiff’s expert that she would be a fit custodial parent. The only unfavorable testimony concerns a period some two years ago. As to the present, there is no claim of unfitness. The Court of Appeals in reviewing a neglect proceeding stated that: “[T]he question of custody of children, this court has said, is ordinarily a matter of discretion for the trial court (Bunim v. Bunim, 298 N.Y. 391, 393) and only rarely can be upset by this court on review. That discretion, however, is not absolute and may be set aside where it lacks ‘sound and substantial basis in the testimony’ or is ‘opposed to everything presented to the court’ (Bunim v. Bunim, 298 N.Y. 391, 393, supra).” (Matter of Darlene T., 28 NY2d 391, 395.) Here the court’s decision is based on sound reasoning and has a substantial basis in the testimony of the plaintiff and her witnesses and in the very assertions of the defendant. It cannot, therefore, be said that the court abused its discretion in awarding custody to the plaintiff. It has been urged that the judgment of Special Term be modified to require joint custody herein. “Joint custody” seems to be one of those ideas which are often quite attractive at a distance, but not quite so, when viewed close up. The legislation which would encourage the use of joint custody by the courts as the norm in all or most cases has been universally disapproved by the New York County Lawyers’ Association, the Association of the Bar, the New York State Bar Association and the Women’s Bar Association of the State of New York. The bill was not approved by then Governor Carey and the prevailing sentiment can be [117] summed up in a statement of the New York County Lawyers’ Association: The bill “would permit, even encourage, the courts to award joint custody with shared responsibility for bringing up a child to separated or divorced parents who cannot agree on anything else in their lives.” This certainly applies to the parents in this case. “Clearly, there are varying degrees of animosity. There is likely a point where the communications between ex-spouses are so destructive that joint custody subjects the child to more harm than good. This was the crux of an important opinion by Chief Judge Breitel of the New York Court of Appeals where,' in the case of Braiman v. Braiman, he reversed a joint custody order. ‘Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic, and embattled * * * [I]t can only enhance familial chaos.’ (Braiman v. Braiman [44 NY2d 584, 587, 590], 378 N.E.2d 1019,1020 (1978)).” (New York State Council on Children and Families, The Effects of Joint Custody on Children: A Review of the Literature, Feb. 2, 1981, p 5, n 3.) Accordingly, judgment of the Supreme Court, New York County (Bowman, J.), entered on June 3,1982, which after a nonjury trial, inter alia, awarded the plaintiff wife permanent custody of the infant child with liberal visitation rights to defendant father, awarded child support in the amount of $125 per week, awarded the wife sole possession and title to the co-operative apartment and equally distributed the remaining marital assets, should be affirmed without costs.