Braiman v. Braiman

• Decision Date: 08 June 1978
• Citation: 44 N.Y.2d 584,407 N.Y.S.2d 449,378 N.E.2d 1019
• Parties: , 378 N.E.2d 1019 Arthur W. BRAIMAN, Appellant, v. Sharon BRAIMAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 449

407 N.Y.S.2d 449

44 N.Y.2d 584, 378 N.E.2d 1019

Arthur W. BRAIMAN, Appellant, v. Sharon BRAIMAN, Respondent.

Court of Appeals of New York.

June 8, 1978.

[44 N.Y.2d 585] Norman Bard, Brooklyn, Anthony M. Barraco, Milton and Sandra Krevitsky, Brooklyn, for appellant.

[44 N.Y.2d 586] Joan Goldberg, New York City, for respondent.

OPINION OF THE COURT

BREITEL, Chief Judge.

In a proceeding, described as one to modify a judgment of divorce obtained by the husband, petitioner father seeks custody of his two sons, now aged six and seven-and-a-half. Until this proceeding, respondent mother had custody under a separation agreement which survived a judgment of divorce. Special Term, Supreme Court, awarded custody to the father, but a unanimous Appellate Division reversed, and awarded custody to the parents jointly. The father appeals.

At issue is whether the custody of children of tender years may be entrusted, jointly, to parents persistently and severely embattled.

The order of the Appellate Division, Insofar as appealed from, should be reversed, and a new hearing held with utmost expedition. 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. On the two-year-old hearing record before this court, plagued as it is with hopelessly conflicting testimony on vital facts and issues, it would be improvident to choose between the contradictory findings of the courts below. Consequently a new hearing is required.

Petitioner father, a successful lawyer, married respondent in 1967. The eldest of their three children, a daughter, was born to the mother before she met petitioner, but was later adopted by him. Although he initially sought custody of his adopted daughter, the father did not appeal from Special Term's award of her custody to the mother. Hence, only custody of the parties' two young sons remains contested.

The preliminary facts are not disputed. Upon the marital breakdown in late 1974, custody of the three children was, under a separation agreement, given to the mother. That agreement survived a judgment of divorce entered in favor of the father in January, 1975. It was not until April, 1976, when the father, who had since remarried, learned that his former wife was contemplating leaving the jurisdiction, that this proceeding for change of custody based on the mother's alleged unfitness was begun. Pending a hearing at Special Term, the sons were temporarily placed with their father.

The picture that developed is a mass of hopelessly conflicting unpleasant cross-accusations. Petitioner views himself as a devoted and responsible father. In the former wife's eyes, however, he is a gambler, an unethical person, and an inattentive and physically abusive father. The mother, who remarried shortly after this proceeding was brought, describes herself as a homebody. In contrast, the father, buttressed by witnesses, characterizes her as a promiscuous barfly who, while entertaining a series of paramours in the children's home, neglected the children.

An extensive investigation by the County Department of Probation was inconclusive. Noting the number of vital contradictions, the probation officer made no recommendation for custody of the sons. She concluded only that both parents seemed to love and be genuinely concerned with the children, and that, due to the mother's contemplated relocation, the father would probably supply a more stable environment.

The eight-day hearing before Special Term, which included testimony of physicians, psychiatrists, teachers, and neighbors, was similarly fraught with contradictions. The testimony of the medical experts provides but one example among many. The father's experts testified that in April, 1976, when change of custody was first sought, the then four year old was badly bruised and the then five year old was suffering from a nervous skin disorder. One physician even filed a report of child abuse. The boys' pediatrician, on the other hand, stated that he had never seen signs of child abuse and that the five year old's rash could not have been caused by anxiety. The authorities, moreover, ultimately determined that the child abuse report was unfounded.

There is more. The father's alleged physical abuse of the children, his asserted delinquency in support payments, the mother's purported neglect of the home, and her alleged promiscuous consorting with intermittent paramours are but four of numerous areas in which the testimony is flatly contradicted.

Concluding that the sons fared poorly with their mother, Special Term, in an elaborated opinion, awarded their custody to the father. The Appellate Division, in an even more elaborate writing, reversed, expressly crediting the testimony in favor of the mother and citing the rule that modification of a custody agreement reached by the parties requires a change in circumstances, especially with respect to fitness (see Matter of Ebert v. Ebert, 38 N.Y.2d 700, 703, 382 N.Y.S.2d 472, 474, 346 N.E.2d 240, 242). Custody was awarded to the parents jointly, the sons to spend weekdays with the mother and weekends with the father.

To date, the order of the Appellate Division having been stayed, the sons remain with the father. Despite court order to the contrary, he has not permitted the mother visitation. For reasons unrevealed by the record, the whereabouts of the mother are now undisclosed.

Under section 240 of the Domestic Relations Law, neither parent has a "prima facie right" to custody. Instead, the court is to "give such direction * * * as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child". It is from this language that the authority to entrust custody of a child to both parents "jointly" has been inferred (see, e. g., Dodd v. Dodd, 93 Misc.2d ---, ---, 403 N.Y.S.2d 401, ---; Perotti v. Perotti, 78 Misc.2d 131, 132, 355 N.Y.S.2d 68, 69).

"Joint", or, as it is sometimes called "divided", custody reposes in both parents a shared responsibility for and control of a child's upbringing (see Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 Cal.L.Rev. 978, 1009-1010; compare 1 Lindey, Separation Agreements and Ante-Nuptial Contracts (rev. ed.), pp. 14-60 to 14-61; see, generally, "Split", "Divided", or "Alternate" Custody of Children, Ann., 92 A.L.R.2d 695). It may or may not include an arrangement for alternating physical custody (compare Schack v. Schack, N.Y.L.J., Aug. 21, 1974, p. 15, col. 8, p. 17, col. 1, with Perotti v. Perotti, 78 Misc.2d 131, 134, 355 N.Y.S.2d 68, 72, Supra ).

On the wisdom of joint custody the authorities are divided (see Dodd v. Dodd, 93 Misc.2d ---, ---, 403 N.Y.S.2d 401, ---, Supra, for a collection of authorities and an analysis of competing concerns; Bodenheimer, pp. 1009-1010). Of course, other considerations notwithstanding, children are entitled to the love, companionship,...