J.C.D. v. D.W.D.

—Order and judgment (one paper), Supreme Court, New York County (Walter Tolub, J.), entered July 18, 1997, which, after trial and to the extent appealed from as limited by plaintiffs brief, granted defendant custody of the parties’ two children, affirmed, without costs, for the reasons stated in the decision by Justice Tolub. In view of the dissent’s adoption of plaintiff’s version of events in virtually all respects, we wish to add the following. While the question of custody may have been a close one in this case, it was the Trial Judge who had the opportunity to observe the witnesses and evaluate their credibility, and, notwithstanding the seriousness of the allegations involved, the court concluded that defendant had not been maliciously motivated in voicing and acting on her suspicions. Having 442 heard all the experts agree that both parents were fit, the trial court came to the difficult conclusion that the best interests of the two young children of this marriage would be served by remaining with the mother, who had always been their primary caretaker and would be able to spend more time with them than plaintiff. In this respect, the court’s decision does not reflect a preference for or misguided belief in the superiority of maternal, rather than paternal, care of young children; rather, as the opinion states, it is the availability of “more intimate contact,” not the gender, of the custodial parent that persuaded the court to leave the children with their mother. In addition, in prescribing numerous specific conditions as part of the custody award, the court endeavored to fashion an arrangement with sufficient safeguards to protect plaintiff’s rights and, most significantly, the best interests of the children. We are confident that the court will be vigilant in ensuring their enforcement. Concur — Milonas, J. P., Rosenberger and Mazzarelli, JJ.