DiStefano v. DiStefano

• Decision Date: 20 January 1978
• Citation: 401 N.Y.S.2d 636,60 A.D.2d 976
• Parties: , 6 A.L.R.4th 1292 James DiSTEFANO, Respondent, v. Maureen DiSTEFANO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 636

401 N.Y.S.2d 636

60 A.D.2d 976, 6 A.L.R.4th 1292

James DiSTEFANO, Respondent, v. Maureen DiSTEFANO, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Jan. 20, 1978.

Runfola & Birzon, Buffalo, by Paul I. Birzon, Buffalo, for appellant.

David J. Kulick, Buffalo, for respondent.

Before MARSH, P. J., and DILLON, HANCOCK, DENMAN and WITMER, JJ.

MEMORANDUM:

Respondent-wife appeals from an order of Family Court which granted custody of the parties' three infant children to the petitioner-husband and granted her visitation privileges at her home from 10 A.M. each Saturday to 7 P.M. each Sunday, conditioned upon the exclusion from the home of one Nancy Wilson during such visitation periods. Upon the first argument of the appeal, we reserved decision and remitted the matter for further proceedings (see DiStefano v. DiStefano, 51 A.D.2d 885, 380 N.Y.S.2d 394). The record is now complete.

The parties were married in 1964 and are the parents of three children aged 10, 7 and 5. In 1973 they entered into a written separation agreement which provided detailed arrangements for the joint custody of the children. A divorce was granted to the husband on January 25, 1974 and the decree incorporated the terms of the separation agreement. It quickly became apparent that the joint custodial arrangement was unsatisfactory. This proceeding, in which each party asserts his or her fitness as a parent, was instituted by the husband on May 15, 1974 and was transferred from Supreme Court to Family Court for determination.

The record demonstrates that the breakdown of the marriage of the parties was caused primarily by the homosexual relationship which developed between the wife and Nancy Wilson. The wife acknowledges that she is a lesbian and the testimony establishes an ongoing lesbian relationship with Nancy Wilson in the wife's home.

Despite the efforts of the wife to raise due process, equal protection and other constitutional questions concerning her claim to sexual privacy free from governmental interference, no such issue is presented for review. Although she is an admitted practicing homosexual, the trial court found that homosexuality, per se, did not render her unfit as a parent. The court made no effort to restrict her preferred sexual activity, although deviate sexual intercourse remains a crime in this state (Penal Law, § 130.38) and similar statutes have been held to be free of constitutional infirmity (see Doe v. Commonwealth's Atty. for City of Richmond, 403 F.Supp. 1199, affd. 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751, mot. for rehearing den. 425 U.S. 985, 96 S.Ct. 2192, 48 L.Ed.2d 810).

In a custody contest between divorced parents, the court's sole ultimate concern is the best interests of the children (Matter of Ebert v. Ebert, 38 N.Y.2d 700, 382 N.Y.S.2d 472, 346 N.E.2d 240; Matter of Obey v. Degling, 37 N.Y.2d 768, 375 N.Y.S.2d 91, 337 N.E.2d 326; Domestic Relations Law, §§ 70, 240). While the sexual life style of a parent may properly be considered in determining what is best for the children, its consideration must be limited to its present or reasonably predictable effect upon the children's welfare (see Matter of Feldman v. Feldman, 45 A.D.2d 320, 358 N.Y.S.2d 507; Matter of Rodolfo "CC" v. Susan "CC", 37 A.D.2d 657, 322 N.Y.S.2d 388).

Although the broad discretionary power of the nisi prius court in matters of custody is not absolute or uncontrolled (Bunim v. Bunim, 298 N.Y. 391, 83 N.E.2d 848), its findings must be "accorded the greatest respect" (Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 866, 345 N.E.2d 337, 338). Where the exercise of that discretion is not "opposed to everything presented to the court" (Bunim v. Bunim, supra, 283 N.Y. p. 393, 83 N.E.2d p. 849) and the...