Bistany v. Bistany

• Decision Date: 15 December 1978
• Citation: 411 N.Y.S.2d 728,66 A.D.2d 1026
• Parties: Theodore S. BISTANY, Respondent, v. Barbara A. BISTANY, Appellant. Barbara A. BISTANY, Appellant, v. Theodore S. BISTANY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 728

411 N.Y.S.2d 728

66 A.D.2d 1026

Theodore S. BISTANY, Respondent, v. Barbara A. BISTANY, Appellant.

Barbara A. BISTANY, Appellant, v. Theodore S. BISTANY, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Dec. 15, 1978.

Doyle, Diebold, Bermingham, Gorman & Brown, by Joseph D. Bermingham, Jr., Buffalo, for appellant.

Grace Marie Ange, Buffalo, for respondent.

Before CARDAMONE, J. P., and DILLON, HANCOCK, SCHNEPP and WITMER, JJ.

MEMORANDUM:

In these consolidated habeas corpus and divorce proceedings, the trial court awarded custody of two boys, Michael and Theodore, aged 15 and 12 respectively, to the husband, and custody of two girls, Margaret and Ann, aged 16 and 14 respectively, to the wife. In reaching its determination, the court noted its awareness of the strong policy against separating children from each other in custodial disputes. It is well established that the nourishment of familial bonds is much to be encouraged and in proceedings of this nature children should not be separated from each other in the absence of unusual and compelling circumstances (Ebert v. Ebert, 38 N.Y.2d 700, 704, 382 N.Y.S.2d 472, 474, 346 N.E.2d 240, 242; Obey v. Degling, 37 N.Y.2d 768, 771, 375 N.Y.S.2d 91, 93, 337 N.E.2d 601, 602; Lucey v. Lucey, 60 A.D.2d 757, 400 N.Y.S.2d 610; People ex rel. Borella v. Borella, 21 A.D.2d 871, 251 N.Y.S.2d 374).

This is an original custodial dispute which follows the separation of the parties after a 16-year marriage. In such circumstances, neither party has a prima facie right to custody (Domestic Relations Law, § 240) and the paramount concern of the trial court must be the welfare and best interests of the children (Domestic Relations Law, §§ 70, 240; Lincoln v. Lincoln, 24 N.Y.2d 270, 271-272, 299 N.Y.S.2d 842, 843-844, 247 N.E.2d 659, 660-661).

The trial justice here gave careful attention to his responsibilities. The parties and their witnesses were afforded a full opportunity to present their evidence and the court conducted a thorough and enlightening in camera interview with the children. The court also had the benefit of reports on the parents and on each of the children from a court-appointed psychologist, together with the views of a clinical child psychologist who conducted extensive interviews with the children and testified at the behest of the husband. It is readily apparent that the court was motivated by concern for the welfare of the children and that its result was "by no means * * * a compromise of the respective claims and feelings of the parents" (Lucey v. Lucey, 60 A.D.2d 757, 400 N.Y.S.2d 610, supra). Indeed, the court noted in its decision that its obligation was "to protect the children's physical well-being as well as safeguarding their psychological needs as opposed to making a decision which would instead serve the emotional needs of the parents". In matters of this...