Kesseler v. Kesseler

• Decision Date: 11 January 1962
• Citation: 10 N.Y.2d 445,180 N.E.2d 402,225 N.Y.S.2d 1
• Parties: , 180 N.E.2d 402 Joan W. KESSELER, Appellant, v. Howard J. KESSELER, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 1

225 N.Y.S.2d 1

10 N.Y.2d 445, 180 N.E.2d 402

Joan W. KESSELER, Appellant, v. Howard J. KESSELER, Respondent.

Court of Appeals of New York.

Jan. 11, 1962.

Porter R. Chandler and David L. Farley, Jr., New York City, for appellant.

Arthur B. Kramer and Maurice N. Nessen, New York City, for respondent.

VAN VOORHIS, Judge.

The decision involves the modification of a separation decree by granting custody to the father of a girl who was six years old at the time of the trial at Special Term and is ten years old today. During four years prior to this decision at Special Term rendered May 26, 1958 (11 Misc.2d 607, 178 N.Y.S.2d 160, the order entered on which was affirmed by the Appellate Division, 10 A.D.2d 935, 201 N.Y.S.2d 194), custody of this child, named Heidi, was with the mother after the couple separated in 1954. The separation decree, entered in 1955, originally awarded custody to the mother, which was confirmed in her by another Special Term order entered in 1957 increasing the alimony and denying a cross motion by the father for a change of custody to him.

A second order of the Appellate Division is likewise here for review, affirming an order denying the mother's application for a new custody hearing in the light of changed circumstances during the pendency of the appeals (17 Misc.2d 498, 191 N.Y.S.2d 50 (June 30, 1959)).

The order directing the change in custody is challenged in this court mainly on the ground that Special Term erred as matter of law in considering the reports of a psychiatrist and of a psychologist concerning their examinations of the parties and their child, and in the refusal of Special Term to allow the parties or their counsel to see these reports or the report of the investigation made by the family counsellor of the court. The latter officer, named Mrs. Sylvia L. Golomb, belongs to the Family Counselling Unit, an advisory arm of Special Term, Part XII, the Family Part of the Supreme Court, New York County, and was authorized by a written stipulation of the parties to make any relevant investigation and inquiry which the court might deem appropriate, including interviewing the parties and their child without further authorization from the attorneys, and this stipulation further provided: 'That the Family Counsellor is authorized to report to the Court concerning the investigation and inquiry conducted pursuant hereto.'

As originally drawn, this stipulation contained a clause authorizing the use of psychiatrists and psychologists, but by agreement of the attorneys it was deleted from the stipulation. This clause which was thus eliminated provided: 'That said Family Counsellor may use psychological, psychiatric and other medical assistance in her inquiry and may require the parties and the child of the parties to be examined by psychologists, psychiatrists or other professional medical personnel, without the further authorization of the attorneys for the parties.'

Under this stipulation, Mrs. Sylvia L. Golomb, the family counsellor of the court, was directed by the justice presiding at Special Term to make an impartial, out-of-court evaluation of the factors bearing on the custody of Heidi. She interviewed many persons having some knowledge of the living conditions of these people whose hearsay declarations are recorded in her report. In addition, as stated in the opinion by Special Term written at the conclusion of the custodial hearing (11 Misc.2d 607, 608-609, 178 N.Y.S.2d 160, 161): 'In an endeavor to ascertain the best scientific and psychiatric information possible, this court availed itself of the services of a noted psychiatrist, a prominent psychologist and the court's family counsellor. Careful investigation, study and interviews with all the principals, including the infant Heidi were initiated in the Spring of 1957. By agreement of counsel (May 23, 1957) and in accord with the underlying necessity therefor, such reports have been held confidential They are available to the appellate courts in a review of the instant decision. These reports are, however, in complete agreement and strongly urge that the welfare of the infant Heidi demands her removal from the household of the mother and that she be placed in an appropriate school for disturbed children.'

In considering this independent investigation by means of a psychiatrist and a psychologist, the Special Term Justice went beyond what had been agreed upon in the stipulation which, wisely or not, declined to consent to psychological or psychiatric examinations and reports. The stress which was placed by Special Term on all of these reports appears from its opinion of April 2, 1958, adhering after reargument to its earlier interim order directing the placement of Heidi in an institution for disturbed children known as St. Christopher's School at Dobbs Ferry, New York. In that opinion (N.Y.L.J., April 4, 1958, p. 5, col. 3) it was stated: 'The ample reports of the psychiatrists and the court's family counsellor together with counsel's stipulation rendered wholly unnecessary oral testimony. These confidential reports will be available to the Appellate Division on its review of the proceedings. The record should include the papers on this motion for reargument and this determination thereof. Permanent custody is not changed, but the infant's welfare commands that the present school arrangements be carried out. Order signed.'

The appellant mother complains not only that she received no notice of the ex parte order transferring custody to St. Christopher's School, which is now academic since Heidi is no longer there, but also and mainly that the court made an investigation on its own through these psychiatric and psychological studies of the parents and Heidi, which the stipulation had refused to authorize, and kept these reports from the parties and their attorneys as well as the report of the court's family counsellor, Mrs. Golomb. Appellant mother avers that she or her lawyers were entitled to inspect these reports and to have opportunity to cross-examine the psychiatrist and psychologist, as well as the family counsellor and the persons whose hearsay declarations are recited in her report. We are satisfied that appellant sufficiently raised these questions and is entitled to be heard upon them in this court.

Regarding the secrecy with which these reports were handled, Special Term said that 'By agreement of counsel (May 23, 1957) and in accord with the underlying necessity therefor, such reports have been held confidential' (11 Misc.2d 608-609, 178 N.Y.S.2d 162). The Appellate Division said: 'Pursuant to stipulation of counsel these reports were held confidential and the contents thereof have not been revealed to the parties and their respective counsel.' (10 A.D.2d 935, 201 N.Y.S.2d 194.)

In construing the stipulation which has been mentioned above and to which these excerpts from these opinions referred, we consider that it lay within the power of the parties to stipulate that such reports could be made confidentially to the court, and that they did so in this instance respecting the investigation and report of the family counsellor, Mrs. Golomb. It is true that the stipulation does not state in so many words that the report of the family counsellor need not be disclosed to the parties or their counsel, but that appears to be the effect of their consent that the family counsellor report to the court concerning her investigation and inquiry. In trying and deciding questions concerning the custody of young children, the parties frequently stipulate that the Trial Justice may interview the child in chambers, and obtain whatever impressions or information the child may give privately to him. What is said by the child to the Justice under such circumstances is necessarily secret unless the Justice chooses to disclose it, nor do we think that he is obliged to spread upon the record whatever the child has said as was held to be necessary where a zoning board views the locus in quo and makes a determination on the basis of its own independent investigation (People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N.Y. 280, 155 N.E. 575). If parties to matrimonial disputes are competent to stipulate that there may be confidential interviews between the Justice and the child without disclosure of what is said by the child, there is little further difficulty in arriving at the conclusion that the parties can stipulate that the probation officer or the family counsellor attached to the court or other qualified and impartial persons may make investigations and report to the court with similar confidentiality. We do not hold with Herb v. Herb (8 A.D.2d 419, 422, 188 N.Y.S.2d 41, 44) on this aspect of the case.

Our State courts have had occasion to consider certain aspects of these questions also in People ex rel. Fields v. Kaufmann (9 A.D.2d 375, 377-378, 193 N.Y.S.2d 789, 791-792); People ex rel. Schlanger v. Schlanger (8 A.D.2d 801, 187 N.Y.S.2d 921); People ex rel. Kessler v. Cotter (285 App.Div. 206, 207, 136 N.Y.S.2d 515, 517); Gluckstern v. Gluckstern (2 A.D.2d 744, 153 N.Y.S.2d 184; 17 Misc.2d 83, 158 N.Y.S.2d 504, affd. 3 A.D.2d 999, 165 N.Y.S.2d 432, affd. 4 N.Y.2d 521, 176 N.Y.S.2d 352). In disposing of the custody of children, courts are not so 'limited that they may not depart from strict adversary concepts' in certain respects. (People ex rel. Fields v. Kaufmann, supra, 9 A.D.2d p. 377, 193 N.Y.S.2d 792.) Custodial questions have sociological implications, and we are confronted here by a situation where common-law adversary proceedings and social jurisprudence are not entirely harmonious and where some recondiliation between them is necessary.

The parties did not have to stipulate that the report of the family counsellor, Mrs. Golomb, should be made to the court. The court could have directed Mrs. Golomb to make an investigation, to be sure, and then could have left her testimony to the...