Denberg, Application of
| Decision Date | 22 June 1962 |
| Citation | 229 N.Y.S.2d 831,34 Misc.2d 980 |
| Parties | Application of Jerome A. DENBERG, for a Writ of Habeas Corpus to determine the custody of Marcia Denberg, Gail Denberg and William Denberg, Infants, now held by Edna Denberg. |
| Court | New York Supreme Court |
Garry G. Blaustein and Milton H. Miller, Brooklyn, for petitioner.
Louis A. Breslerman, New York City, for respondent.
This is an application by the petitioner, former husband of the respondent, for a Writ of Habeas Corpus to restrain her from removing the three infants of the marriage 'from the City and State of New York, to the State of California' and in which petitioner in the wherefore clause prays that he 'be granted the custody of the three infant children if the said EDNA DENBERG persists in her plans to remove from the City of New York to the State of California, and that rights of visitation for the petitioner with his three infant children continue in the City of New York, or that in the alternative if the said EDNA DENBERG shall remove from the jurisdiction of the State of New York and visitation thus be denied to your petitioner, that your petitioner, while such children are out of the State of New York with consequent denial of visitation, shall be relieved from making payments for support of EDNA DENBERG and the infant children herein, until such time as EDNA DENBERG and the three infant children return to reside permanently in the State of New York.'
There are three children of the marriage, two girls being respectively 19 and 15 years of age and the boy being 13 years of age.
The parties were married on September 13, 1941 in the City and State of New York and their marriage was dissolved on May 30, 1961 by a decree of divorce issued out of the First Civil Court of the District of Bravos, State of Chihuahua, Republic of Mexico. The divorce was instituted by the petitioner-husband and the respondent appeared therein by her attorney.
It appears from the testimony in the case that since he obtained his decree of divorce on May 30, 1961, petitioner has married a woman who has two children of her own. It is quite apparent to the Court that it is that remarriage which lies at the root of the respondent's desire to move to California and to take the three children with her.
As in many cases of broken homes, the love which formerly existed between the husband and the wife has now turned to bitterness and hatred, and the children have become the unfortunate pawns in the feuding of their parents.
Upon the hearing of this Habeas Corpus the petitioner-father desired to call the children as witnesses. The respondent demurred and the Court thereupon suggested that instead of the children being put upon the stand in open Court and being made the subject of examination and cross-examination, that they be interviewed separately and privately by the Court in Chambers and that the Court might make his determination not only upon the evidence produced in open Court but also upon his reactions garnered from his conversations with the three children. The suggestion of the Court was accepted by both sides and was put into the record as a stipulation of the parties.
The Court spoke to the children separately at great length in Chambers and became convinced from his conversations with them that they were indeed the unfortunate victims of their parents' bitterness toward each other. It also became quite apparent from my interview with the children and from the testimony in the case that both parents had a tremendous love and affection for the three children and desired only that which was best for them, but that the respondent in her intense hatred of the petitioner was doing things which inevitably tended to unstabilize the minds of the children and to destroy their comfort and repose.
During the first day of the hearing the respondent on the witness stand gave evidence of her intense dislike of her former husband and her hysterical reaction to his right to see and visit with the children, when she announced, in effect, that the right of visitation by the husband must end, and that if she could not have the children all to herself he could have entire custody of them.
At the conclusion of the hearing, on its first day, when the parties had put in all of the proof which they then desired to interpose, I indicated I was not inclined, if I had the power, to permit the respondent to take the three children to the State of California, there to reside permanently, and thus destroy the right of the three children to have the benefit and the guidance and the love and affection, even though only once or twice a week, of their father.
The proof, as has been stated, shows that both parents intensely love their children and desire only what is good for them. When I asked the respondent on the witness stand what it was that she thought should deprive the father of the right to see and visit with his children, and of their righ to get the benefit of his guidance and love and affection, her only complaint, aside from certain alleged moral derelictions on his part, to which I gave and give no credence, was that he spoils the children by lavishing too many luxuries upon them. In view of the $8,000.00 spent by the father for the boy's Bar Mitzvah (confirmation), the yacht which he has bought and which the children use, and the automobile which was provided for the use of the older daughter, this charge by the respondent may well have basic merit, but unfortunately it is one of the by-products of our present era where some parents think that the best way to bring up a child is by having him avoid the hard knocks which they themselves experienced and by having him or her brought up in the lap of luxury. I do not feel that this objection is one which was urged by the respondent in good faith, nor is it the kind of extravagance which she opposed when she and the petitioner were living together as husband and wife, but is rather an objection born of the rift between them.
When I indicated at the conclusion of the first day's hearing that my paramount and sole concern was for the welfare of the children, and that my determination was going to be guided solely by that fact, the attorney for the respondent requested a continuance so that he could produce a psychiatrist. His application was granted and yesterday when the hearing was resumed the psychiatrist testified that the respondent had made visits to him on May 4th, 8th, 15th, 17th and June 9th and June 15th, all in this year; that she came to see him for treatment of a nervous condition and that he found her to be suffering from symptoms of an anxiety state with depressing features which was caused by the wrangling, disputations and conflicts arising from her relations with her ex-husband. He stated that the state in which he found her made her impatient, irritable and unhappy with her children and that because of her mental state the children also were becoming emotionally upset and depressed. He stated that on June 15th he saw the three children and that they were all quite tense and upset, and that the boy was particularly agitated, tremulous and anxious, and was only able to express himself with difficulty because he was quite confused. He expressed it as his opinion that the two girls felt that they would like to get away from what he called 'this situation' and he said that the girls expressed little serious affection for the father, although conceding that the boy expressed affection for both parents . The Court questioned the psychiatrist very carefully about the effect on the children if they were deprived of the love, guidance and affection of their father who had seen them regularly every week, and sometimes twice a week, and the psychiatrist admitted that in the case of the boy, at least, it would be a traumatic experience .
At the continued hearing yesterday, respondent, who had originally opposed the children's testifying in open Court, proposed to call the three children as witnesses. I declined to hear them since it was the respondent who first objected to their testifying, and because it was in violation of the stipulation which had been entered into in open Court, and because in my opinion it would not have been in the best interests of the children to be compelled to testify against one or the other of their parents, in the presence of both parties. It should be noted, at this point, that during the entire hearing the children were excluded from the courtroom by me and did not hear the testimony.
I am convinced that my reason for refusing permission to have the children testify was sound. I am further convinced by the testimony of they psychiatrist, whose version of the two daughters' views differs greatly from what I had gleaned from them, that if the psychiatrist was correct in his testimony the two girls were subjected to intensive persuasion during the period of the continuance.
The petitioner argues that the separation agreement entered into between him and the respondent, and which was thereafter incorporated in the decree of divorce entitles him under its year terms to specific rights of visitation.
Paragraph 3 of the separation agreement reads as follows:
'The wife shall have custody of the children,...
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