Ebert v. Ebert

• Decision Date: 26 February 1976
• Citation: 346 N.E.2d 240,38 N.Y.2d 700,382 N.Y.S.2d 472
• Parties: , 346 N.E.2d 240 In the Matter of Robert J. EBERT, Respondent-Appellant, v. Renee A. EBERT, Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 472

382 N.Y.S.2d 472

38 N.Y.2d 700, 346 N.E.2d 240

In the Matter of Robert J. EBERT, Respondent-Appellant, v. Renee A. EBERT, Appellant-Respondent.

Court of Appeals of New York.

Feb. 26, 1976.

Joseph A. D'Addario, New York City, for respondent-appellant-respondent.

Richard C. Mitchell, Jr., Oswego, for petitioner-respondent-appellant.

FUCHSBERG, Judge.

This proceeding was brought in the Family Court by a father to obtain custody of the three children of his marriage to the respondent. After a full trial, the petition was dismissed on the merits and custody continued in the mother. The Appellate Division reversed to the extent of granting custody of the two older children to the father, continuing custody of the youngest in the mother. Both parties appeal.

When the petition was filed the ages of the children were nine, eight and four. The marriage between the parties had come apart about a year earlier. Until then the children had always lived with both parents. Thereafter they lived with the mother pursuant to the custody provisions of a separation agreement. The agreement survived their divorce. By its terms, the father enjoyed generous visitation privileges.

Basically, the father's petition centered on the fact that the two older children, and more particularly one of them, during the summer vacation visit with him during which this proceeding was initiated, had indicated a preference for not returning to the mother but remaining with the father on a permanent basis. The father lived in an attractive house located in the familiar setting in which the children were being reared before their parents' marriage broke up. In contrast, the mother, limited in her financial resources, had set up her new home in an adjoining State in a far less commodious, but adequate, apartment.

There is no claim that, when she was first given the children, the mother was not fit for the custodial role which both parents apparently thought it best she assume. Nor does the evidence disclose any serious question but that her fitness continued at all times thereafter. Among other things, it is noteworthy that she demonstrated intelligent concern for and sensitivity to the special educational problems which beset one of the children, that she acted with responsibility and maturity in keeping the father abreast of that situation and that she was punctilious in making the children available for their visits to him. Indeed, the Family Court Judge found that both the father and mother were loving, suitable parents and that, as best he could determine, one was no less fit than the other. Our own examination of the record finds his appraisal to be well supported. The Appellate Division did not suggest the contrary.

As in all custody disputes between divorced parents, the welfare of the children here had to come first (Domestic Relations Laws, § 70; Obey v. Degling, 37 N.Y.2d 768, 769, 375 N.Y.S.2d 91, 337 N.E.2d 601). And, while the children's attitudes were to be given consideration, that did not mean that their wishes were to be determinative. The best interests of a child, particularly over the long term, often require the overbalancing of subjective desires by more dependable objective criteria (Dintruff v. McGreevy, 34 N.Y.2d 887, 359 N.Y.S.2d 281, 316 N.E.2d 716).

It is a most regrettable, but unfortunately not uncommon, consequence of a marital dissolution for impressionable children of tender years to find themselves beset with the deep emotional conflict of having to choose between fealty to one parent or the other. The expedient-oriented outer choice by which a child may be compelled to respond to such a conflict can hardly be permitted to foreclose the obligation of courts to make the best choice available. Obviously, the minimizing of such pressures on children cannot be accomplished by courts alone. More crucial is a gentle, wise and forbearing attitude on the part of parents, perhaps all the more so when a mother and father continue to be as devoted to their youngsters as do those before us. It is not always easy for divorced parents, in the face of each one's desire to retain the affection of a child, to blunt rather than, by temporizing, encourage many of the dissatisfactions which children, transitorily and with little objectivity, may experience with regard to the other parent. Needless to say, it would help immeasurably to assure the development and maintenance of the continuing long-term relationships favored...