Linda R. v. Richard E.

• Decision Date: 01 October 1990
• Parties: , 59 USLW 2327 LINDA R. (Anonymous), Appellant-Respondent, v. RICHARD E. (Anonymous), Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 29

561 N.Y.S.2d 29

162 A.D.2d 48, 59 USLW 2327

LINDA R. (Anonymous), Appellant-Respondent, v. RICHARD E. (Anonymous), Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 1, 1990.

Brownstein & Brownstein, New York City (Irwin Brownstein, of counsel), for appellant-respondent.

Emanuel Baetich, New York City, for respondent-appellant.

NOW Legal Defense and Education Fund, New York City (Sarah E. Burns, Lynn Hecht Schafran, and Latham & Watkins [Jennifer L. Adams, Christopher R. Plaut, and Michael J. Ireland], of counsel; Sally F. Goldfarb, on the brief), amicus curiae, pro se, and for Nat. Organization for Women of New York State, amicus curiae.

Before LAWRENCE, J.P., and KUNZEMAN, ROSENBLATT and MILLER, JJ.

ROSENBLATT, Justice.

In this matrimonial action, the Supreme Court, after a trial, awarded the defendant husband custody of the parties' twin daughters, who are now nine years old. The plaintiff wife has appealed from this determination, claiming the proof at the trial established that she is the appropriate custodial parent, and that the court, in weighing the parental capabilities of the husband and wife, did not apply gender-neutral standards. For reasons which follow, we find that the custody determination lacks a sound and substantial basis in the record. Accordingly, we reverse it and award custody to the wife.

Domestic Relations Law § 240(1) provides, in pertinent part, that the trial court's award of custody must be made as justice requires, "having regard to the circumstances of the case and of the respective parties and to the best interests of the child," noting that "[i]n all cases there shall be no prima facie right to the custody of the child in either parent." However, while "due deference must be accorded to the trial court, which has seen and evaluated the evidence first hand * * * [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 lack[ed] a sound and substantial basis in the record and, indeed, [was] contrary to the weight of the credible evidence" (Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411). Upon our own authority to make a determination on the record before us, we conclude that the weight of the credible evidence supports an award of custody to the wife.

The parties were married in 1974. They met when the husband was attending medical school, and the wife was in nursing school at the same facility. When they were married, the husband was preparing to enter his third year of medical school, while the wife had just received her B.S. degree in nursing.

Following the marriage, and until 1983, the wife (with one year off beginning in 1981 because of the birth of the parties' twin daughters) was employed as a nurse. Her salary served as substantial financial support for the family, at first exceeding the husband's earnings, until about 1984.

At trial, both the husband and wife stressed their respective roles in child rearing during the first year of the children's lives. The record establishes, however that for the most part, the wife was not producing income at that time, but was at home with the children. The husband launched his private practice in pediatrics in 1982, and his income grew steadily thereafter. In 1983, the wife left her position as a nurse to take employment as a "nurse investigator" for a law firm, and had more flexible hours, such that her professional employment consumed only three or four days a week. By 1987, the husband was earning approximately $130,000 in a growing medical practice.

There is no foundation in the record for the trial court's conclusion that the wife "has been more or less a 'remote control' mother, having an interest in her children's welfare, but leaving the actual rearing, at this point in their lives, to the father and a housekeeper". Rather, the evidence presented indicates that the wife has participated substantially in the rearing of the children. Indeed, the record reveals that the wife's hours spent in pursuit of a career outside the home are decidedly fewer and more flexible than those spent by the husband, as recognized by the Supreme Court.

Moreover, we find no credible evidence to support the assertion that the wife has "extreme emotional problems affecting her ability to guide these children" or that her "history is one of leaving a therapist and discontinuing treatment as soon as she doesn't like what is being told to her by the therapist". The only basis for this belief is the testimony of an unlicensed "psychotherapist" who, at the time of trial, was treating both the husband and the parties' housekeeper. She had treated the wife three years earlier for four months, but had never interviewed the children. We find that the wife did not terminate treatment irresponsibly, but continued therapy with two licensed physicians. Their reports to the Nassau County Probation Department indicated that her emotional condition had improved since she stopped seeing the psychotherapist, and that her problems did not and would not affect her custodial capacity. Additionally, the Supreme Court failed to take into consideration that the husband also suffered from emotional problems necessitating treatment by the psychotherapist. Its custody determination does not have the "firm expert confirmation" upon which it claims to have relied to justify the result (Matter of Gloria S. v. Richard B., 80 A.D.2d at 73, 77, 437 N.Y.S.2d 411, supra ).

The court allowed extensive testimony, including some from a private investigator, regarding a relationship between the wife and "her lover", concluding that it disserved the children by disordering the wife's priorities. The evidence does not justify the Supreme Court's conclusion that the wife's alleged relationship with another man resulted in her absenting herself from the children "at a time when they [were] in great stress from the impending breakup of the marriage" and reflected the wife's "misplaced priorities and her somewhat less than selfless devotion". The evidence indicated that while the children were aware of the parties' problems, they were well-adjusted emotionally and were not under undue stress or in need of psychotherapy. The wife's absences from the home were consistent with an arrangement by which the parties continued to live in the marital residence, but occupied separate bedrooms, and had informally agreed that each would have some time alone with the children. At no time were the children left without adult supervision. There is no credible proof that the wife's alleged relationship with another man affected the children in any significant way. Further, when the wife's attorney tried to question the housekeeper and cross-examine the husband about parallel activities on the husband's part, the court improperly found the questions objectionable.

In a custody dispute, the sexual behavior of a litigant is relevant, if, and to the extent, the children are thereby affected (see, Matter of Blank v. Blank, 124 A.D.2d 1010, 509 N.Y.S.2d 217; Matter of McDonald v. McDonald, 94 A.D.2d 856, 463 N.Y.S.2d 598). The courts have recognized that mothers and fathers should not, on the basis of gender alone, be held to different moral, behavioral, or sexual standards in evaluating their conduct vis-a-vis the children (see, Matter of Feldman v. Feldman, 45 A.D.2d 320, 358 N.Y.S.2d 507; Commonwealth ex rel. Ackerman v. Ackerman, 204 Pa.Super. 403, 205 A.2d 49; Schoonover v. Schoonover, 228 N.W.2d 31 [Iowa]; Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225). ¹

In enacting the "best interests of the child" test, the Legislature expressly rejected the idea that either fatherhood or motherhood alone carries with it a superior right to custody (see, Domestic Relations Law §§ 70, 81, 240). The statutory declaration that there is "no prima facie right to the custody of the child" (Domestic Relations Law §§ 70, 240) rejects the notion that there is an inherent custodial preference for either parent (Matter of Fountain v. Fountain, 83 A.D.2d 694, 442 N.Y.S.2d 604, affd. 55 N.Y.2d 838, 447 N.Y.S.2d 703, 432 N.E.2d 596; Alan G. v. Joan G., 104 A.D.2d 147, 152, 482 N.Y.S.2d 272; People ex rel. Moody v. Moody, 36 A.D.2d 627, 319 N.Y.S.2d 136), while at the same time advancing equal protection concepts, and reducing invidious gender classifications and stereotyping of either sex. ² While the role of gender in making custody determinations has had a lengthy social and legal history, it finds no place in our current law. ³

The need to employ gender-neutral precepts applies with equal force to the litigants' employment outside the home. In this regard, the Supreme Court's determination has been challenged on the wife's behalf on the ground that the Supreme Court imposed a more onerous parenting standard upon her. As evidence of the imposition of a more rigorous standard, our attention has been drawn to the following language in the opinion of the Supreme Court:

"This court is fully cognizant of the role of the working mother in today's society, but as it has stated in Shelton v. Shelton, NYLJ, 11/5/87, p. 15, col. 6: 'There is no question, on the other hand, that the mother, because of her needs in relation to her employment, does not devote full time to her son, but in this day and age, a woman is entitled to her own career so long as such pursuits do not result in neglect of the child' ".

Because the court reaffirmed the above quoted language (which it had previously used in another case, Shelton v. Shelton, NYLJ, Nov. 5, 1987, p. 15, col. 6), but did not apply a corresponding standard to the husband, it is not free of the appearance of having imposed a more onerous burden on the wife. ⁴

We stress that custody determinations must be born of gender-neutral precepts in both result and expression. We know that for a variety of reasons,...