Keating v. Keating

• Decision Date: 27 February 1989
• Citation: 538 N.Y.S.2d 286,147 A.D.2d 675
• Parties: Frances A. KEATING, Appellant, v. Kevin G. KEATING, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 286

538 N.Y.S.2d 286

147 A.D.2d 675

Frances A. KEATING, Appellant, v. Kevin G. KEATING, Respondent.

Supreme Court, Appellate Division Second Department.

Feb. 27, 1989.

Stephen Gassman, Garden City (Barry J. Fisher, on the brief), for appellant.

Willard H. DaSilva, Garden City, for respondent.

Before KOOPER, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action in which the parties were divorced by judgment dated January 21, 1982, the plaintiff wife appeals from an order of the Supreme Court, Suffolk County (Willen, J.), dated October 14, 1987, which granted the defendant's cross motion for modification of the parties' stipulation by transferring custody of the children from the plaintiff to him.

ORDERED that the order is reversed, on the facts, with costs, the defendant's cross motion is denied, and the provisions of the parties' stipulation concerning custody of the children are reinstated.

The parties were married in New York on August 26, 1972. After residing in Dix Hills, Long Island, with the plaintiff wife's parents for approximately one year, the parties moved to New Hampshire, where they resided until they separated in 1981. Three children were born of the marriage, Kendra, Kevin and Bryan, whose ages are presently 15, 12 and 8 years, respectively. The children have resided continuously with the plaintiff since 1981.

On June 24, 1982, the parties entered into a "permanent stipulation" which provided, inter alia, that the plaintiff was to have physical custody of the children. In 1982, after verbally informing the defendant that she intended to leave New Hampshire, the plaintiff returned to New York with the children and moved into her parents' residence in Dix Hills. As of August 1983 the defendant relocated permanently in North Carolina, where he presently resides with his second wife and their two infant children. In 1983, the parties entered into a stipulation which, inter alia, refined the terms and conditions of the defendant's visitation in light of the parties' new residences. Although in 1982 the New Hampshire Superior Court found that the plaintiff was interfering with the defendant's visitation, neither in the 1983 stipulation, nor at any time prior to its execution, had the defendant sought to modify the parties' agreement that the plaintiff was to retain physical custody of the children.

In 1984, after the plaintiff moved successfully to compel the payment of arrears in excess of $11,000, the defendant instituted an action in New Hampshire seeking custody of the children. Although a hearing was held in 1985, the court ultimately dismissed the action, determining that New Hampshire no longer maintained any connection with the children. In December 1985 the plaintiff commenced the proceeding at bar in which she sought arrears exceeding $20,000. The defendant cross-moved for an order awarding him custody of the children. After a hearing, the Supreme Court, Suffolk County--ignoring the recommendations of the guardian ad litem--found, inter alia, that the plaintiff had been interfering with the defendant's visitation, and modified the parties' stipulation by awarding custody of Kevin and Bryan to the defendant. Kendra, who was then 14 years old, was to remain with her mother in New York. The plaintiff now appeals, arguing, inter alia, that the court's findings with respect to the best interests of the children were against the weight of the credible evidence adduced at the hearing. We agree.

There can, of course, be no dispute that any determination with respect to the alteration of a custody arrangement--here, one of longstanding duration entered into with the defendant's acquiescence--must be rendered with the best interests of the children as the paramount consideration (see, Domestic Relations Law §§ 70, 240; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765; Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Among the factors to be considered prior to the modification of the parties' stipulation are the quality of the home environment and the parental guidance the custodial parent provides for the child (Eschbach v. Eschbach, supra, at 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Ebert v. Ebert, 38 N.Y.2d 700, 702, 382 N.Y.S.2d 472, 346 N.E.2d 240); the ability of each parent to provide for the child's emotional and intellectual development (Porges v. Porges, 63 A.D.2d 712, 713, 405 N.Y.S.2d 115, lv. denied, 45 N.Y.2d 710, 409 N.Y.S.2d 1029, 381 N.E.2d 616); the financial status and ability of each parent to provide for the child (Eschbach v. Eschbach, supra ); the relative fitness of the respective parents, as well as the length of time the present custody has continued (Matter of Nehra v Uhlar, 43 N.Y.2d 242, 401 N.Y.S.2d 168, 372 N.E.2d 4). Moreover, as this court has observed, " 'priority in a custody dispute should be given to the first parent who was awarded custody * * * by voluntary agreement' " (Robert C.R. v. Victoria R., 143 A.D.2d 262, 264, 532 N.Y.S.2d 176, quoting Matter of Richman v. Richman, 104 A.D.2d 934, 935, 480 N.Y.S.2d 551; see also, Friederwitzer v. Friederwitzer, supra, 55 N.Y.2d at 94, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Nehra v. Uhlar, supra 43 N.Y.2d at 251, 401 N.Y.S.2d 168, 372 N.E.2d 4). It is well settled, furthermore, that the courts will not disrupt sibling relationships unless there is an overwhelming need to do so (see, Eschbach v. Eschbach, supra, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Ebert v. Ebert, supra, 38 N.Y.2d at 704, 382 N.Y.S.2d 472, 346 N.E.2d 240; Obey v. Degling, 37 N.Y.2d 768, 375 N.Y.S.2d 91, 337 N.E.2d 601; Jones v. Payne, 113 A.D.2d 968, 969, 493 N.Y.S.2d 650; Pawelski v. Buchholtz, 91 A.D.2d 1200, 459 N.Y.S.2d 190). Although the findings of the hearing court in respect to the modification of child custody are to be accorded great respect (see, e.g., Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260,supra ), " '[a]n appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record' " (Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411; Skolnick v. Skolnick, 142 A.D.2d 570, 530 N.Y.S.2d 235). Such is the case at bar.

It is notable, initially, that the record is bereft of evidence which indicates that the defendant--here seeking custody responsively by cross motion--is the superior or preferred custodial parent. In fact, the parties themselves manifested an entirely contrary perception of their respective parenting abilities, inasmuch as they executed stipulations under which it was agreed that the plaintiff would assume the duties of primary custodial parent (cf., Eschbach v. Eschbach, supra; Matter of Long v. Scism, 143 A.D.2d 95, 531 N.Y.S.2d 345).

Nor, as suggested in the report of the guardian ad litem, is there evidence which indicates that an alteration of the parties' custodial arrangement will enhance the welfare of the children (see, Friederwitzer v. Friederwitzer, supra 55 N.Y.2d at 94-95, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Ebert v. Ebert, 38 N.Y.2d 700, 382 N.Y.S.2d 472, 346 N.E.2d 240 supra; Obey v. Degling, 37 N.Y.2d 768, 375 N.Y.S.2d 91, 337 N.E.2d 601, supra; Matter of Garcia v. Doan, 132 A.D.2d 756, 757, 517 N.Y.S.2d 109, lv. dismissed 70 N.Y.2d 796, 522 N.Y.S.2d 112, 516 N.E.2d 1225; Pawelski v. Buchholtz, 91 A.D.2d 1200, 459 N.Y.S.2d 190 supra; Martin v. Martin, 74 A.D.2d 419, 427, 427 N.Y.S.2d 1007). Indeed, the record contains evidence to the contrary. Aside from the importance of maintaining stability in the children's longstanding living arrangements (see, Friederwitzer v. Friederwitzer, supra; Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 248-249, 401 N.Y.S.2d 168, 372 N.E.2d 4, supra ) and the evidence which indicates that the children have developed a strong, loving relationship with their grandparents, who reside with them, it stands uncontradicted, as recounted by plaintiff's psychologist--who conducted extensive clinical testing of the children--that a change in custody will likely produce deleterious emotional effects, especially with respect to eight-year-old Bryan, who was only approximately three months of age when the defendant left the marital residence and who, therefore, has never resided with the defendant as principal custodian. It is notable that the Court of Appeals has observed in this respect that, "[t]he courts should be reluctant to transfer custody of young children who have been with their mother since birth" (see, Aberbach v. Aberbach, 33 N.Y.2d 592, 593, 347 N.Y.S.2d 456, 301 N.E.2d 483; see also, Alan G. v. Joan G., 104 A.D.2d 147, 153, 482 N.Y.S.2d 272). Furthermore, the plaintiff's psychologist was firm in his conviction that any attempt to separate the children would be inadvisable and potentially harmful. The accuracy of his assessment was subsequently reflected in the in camera statements of Kevin and Kendra the parties' then 11-year-old son and 14-year-old daughter, who themselves expressed anxiety when confronted with the possibility of separation.

Although the defendant produced no expert witness at the hearing, the Supreme Court, in rendering its findings, chose to ignore key testimony provided by the plaintiff's psychologist and instead relied upon testimony adduced in a 1985 New Hampshire proceeding, supplied by a psychologist who, in April of 1985, spent a total of one hour examining two of the parties' three children. The transcript of the New Hampshire proceeding further reveals that this psychologist last interview the plaintiff in 1981 and that he had performed no formal psychological testing or evaluations during the brief interviews of the children he conducted in 1985.

There exists, moreover, a question with regard to whether the defendant would be...