Jane B., In re

• Decision Date: 02 January 1976
• Parties: In re JANE B., * an infant.
• Court: New York Supreme Court

Page 848

380 N.Y.S.2d 848

85 Misc.2d 515

In re JANE B., ^* an infant.

Supreme Court, Onondaga County.

Jan. 2, 1976.

Devorsetz, Stinziano & Smith, Syracuse, for petitioning Father; Sidney Devorsetz, Syracuse, of counsel.

Bonnie Strunk, Syracuse, for respondent Mother.

MEMORANDUM DECISION

EDWARD F. McLAUGHLIN, Justice.

This proceeding was originally initiated under a Writ of Habeas Corpus returnable at Special Term on June 3, 1975 in which the petitioning father sought a change of custody from the respondent mother of an infant daughter, Jane B. The parties were married in 1965, separated in 1968 and a divorce was granted in 1971 to the father on the basis of a filed Separation Agreement executed June 17, 1968 which was incorporated but not merged in the Judgment of Divorce. The only child of this marriage was Jane B., who was born October 1, 1965. Custody of this child was granted to the mother in the Judgment of Divorce based on the provisions of the Separation Agreement. The infant child has been in continuous custody of the mother to the present date.

The Habeas Corpus proceedings came before the Special Term and at the suggestion of the Court, counsel for the respective parties agreed in a written stipulation dated June 10, 1975 that the preferable procedure in this matter was for a determination whether the original Judgment of Divorce and the Separation Agreement should be modified as to custody of the infant child. Inasmuch as Hon. Richard D. Simons, who granted the original Divorce, is now serving in the Appellate Division, an Order was signed by the Court, based on the stipulation of the parties, referring the matter for a plenary hearing as to the custody of the infant, Jane B. The hearing was conducted by this Court on August 19th, 20th, 21st, 1975 in Trial Term, held in and for the County of Onondaga.

During the hearing, both parties testified. In addition, the maternal grandmother of the infant child, Jane B. and a school psychologist from the school district in which the infant child was a student, testified. In addition, seven separate exhibits were received into evidence without objection.

In brief, the evidence disclosed that the mother has had sole custody of the infant child, Jane B., in accordance with the Separation Agreement and the Judgment of Divorce granted by the Court. The father has visitation rights which he usually exercises on Sundays when he picks up the child at his former wife's apartment and brings her to his home where he resides with his aunt, 85 years of age, and his present wife whom he married on August 1, 1975.

The father agreed that the child was well dressed when he went to get her at the mother's apartment, but on occasions he would receive a call that the mother and child were going away for the weekend and he would not be able to see the child Sundays of such weekends. The father testified that on his visits to the apartment, Lucy Q., who resided there with his former wife and the infant child, was constantly rocking during his visit and did not converse with him. It was also indicated that Locy Q. and his former wife slept together in one bedroom, which observation led him to suspect that an abnormal relationship existed. The infant child had a separate bedroom, and in between these two bedrooms was a third bedroom, utilized as a den or for storage.

The maternal grandmother of the infant child is employed as a Senior Laboratory Technician at Upstate Medical Center and is the Supervisor of her daughter, the mother of the infant child, and Lucy Q., who likewise are employed as Technicians under her direction. Her daughter, the mother of the infant child, with the infant child, Jane B., lived with her until August 1974 when they moved into an apartment. Lucy Q. lived with them for a short time before moving with the respondent mother and the infant child, Jane B., to the apartment. She had observed their behavior at work and also had visited the apartment and had had dinner there on occasions. She said that Lucy Q. and the respondent mother, her daughter, had slept in the same bedroom when they lived at her house. She observed Lucy Q. rocking in a rocking chair and also engaging in long telephone conversations. She was confronted with a written signed statement taken by petitioner's attorney who called her as a witness, taken at her home on May 27, 1975 (Exhibit 4) in which she stated that Lucy Q. and her daughter, the respondent mother, act like husband and wife, sleeping in the same bed and that they whispered to each other and talked over the telephone with each other when they were not together, that Lucy Q. rocks all the time, yells at Jane B., and that Lucy Q. and her daughter, the respondent mother, leave the infant, Jane B., alone outside and ignore her at all times. She admitted that she gave this statement and signed it. She also told the plaintiff's counsel who called her to the stand that she didn't read it, that she loves Jane B. even more than her daughter and she was upset when her daughter had moved out with Jane B. since she wanted them to remain. She testified that the statement was made under emotional strain and she had since learned the true facts and apologized to her daughter.

The school psychiatrist of the East Syracuse-Minoa School District, testified that he had conducted a series of tests after a conference with the parents which had been initiated by a referral from the Fourth Grade teacher who had Jane B. in her class.

The tests showed that the child had an I.Q. of 133 which was superior. Her scholastic achievements, however, did not indicate that she was working to her full intellectual capacity. A visual test was indicated. She was clean, well-dressed and cared for, well motivated and was average in her classwork.

He concluded that she was emotionally upset. He believed a change of living environment was indicated. This conclusion was made before he visited the apartment where the infant child resided with her mother and Lucy Q. He later visited the apartment, found it to be very clean and modern. He said that while he was there, Lucy Q. was present in a rocking chair and didn't talk or come to see who he was upon his arrival. He learned that Lucy Q. and the infant child's mother slept together, watched television and talked together to the exclusion of others, and from his observation, this indicated an abnormal relationship between these two ladies, and that the home of the petitioning father would be more conducive to normal development of the child. Under cross-examination, he admitted that the divorce of the parents itself could be one of the causes of an emotional disturbance of the child. He also stated that he did not know whether there was any emotional problem involving the child before the trip that she made to Europe to visit the paternal grandmother, and in cross-examination he could not specifically pinpoint the cause of the child's emotional problems, but suspected the child was living in an abnormal atmosphere and the tests he permormed showed an emotional disturbance.

The mother of the infant child testified that she had had custody of the infant child since her birth and was awarded custody by Judgment of Divorce in 1971. She and the child and Lucy Q. lived for some time with her mother, after which they obtained an apartment where she has lived to the present time with Lucy Q. and the infant child. She said that she gave permission for the infant child to accompany her father the Europe to visit the paternal grandmother, but the father later learned that he could not go. She paid one-half of the fare for the child on the trip to Europe. Upon receiving a telephone call from her daughter after two weeks, and at the daughter's request, she went to Europe, stayed an additional week with the child and paternal grandmother and then came home with the child.

She states that she drops the child off at school in the morning. Locu Q., who gets off work a little earlier than she, picks up the child at school and brings her home. She has a regular baby sitter for the child during the school vacations while she and Lucy Q. are at work and has never left the child alone. She also testified that her outside social life is restricted because of her working hours and the care of the child after working hours, but she does occasionally go bowling or to shows and out to dinner and occasionally dancing with men and that Lucy Q. does likewise when time permits. She was not questioned by either counsel as to any homosexual relationship with Lucy Q. and Lucy Q., although present throughout the hearing, was not called as a witness by counsel for either party to testify.

The respondent mother testified that she never denied visitation to the father except to offer a substitute day if she was going away with the child on a weekend.

She said that the infant child, Jane B., had passed all of her subjects in June 1975 and had been certified for promotion to the next grade in school. She also testified that she, Lucy Q., and the infant child were going to move back into the home of her mother in October 1975.

At the request of both parties, the Court in the exercise of its discretion, interviewed the infant on August 26, 1975 on the record in Chambers and such record, in accordance with our practice, is to be sealed. The child was clean, well-dressed, and normal in her appearance and response to the questions of the Court. Suffice it to say that there was no derogatory information as to either parent or as to the home environment in which she lives with her mother and Lucy Q. or that of her father. She was not questioned as to the alleged homosexuality issue as a matter of discretion.

At the close of the hearing on August 21, 1975, the Court reserved decision and interviewed the child, Jane B., on August 26, 1975 in Chambers and sealed the record.

While the decision was still pending, the Court was advised that the...