(concurring). The only issue is custody and visitation for a seven-year-old girl.
The father is an avowed homosexual. We are all agreed that it is the best interest of the child with which the court should be concerned. (Friederwitzer v Friederwitzer, 55 NY2d 89.)
The court at Special Term, as part of the judgment, had the following provisions, which we have numbered:
*122“[8] ordered and adjudged that custody of the child, Samantha Gottlieb, be and the same hereby is awarded to plaintiff; and it is further
“[9] ordered and adjudged that defendant is awarded visitation privileges: (a) at his home, in alternate weeks from 5:00 P.M. Friday to 7:00 P.M. Sunday, and (b) during the entire month of July each year not limited to defendant’s home; and it is further
“[10] ordered and adjudged that defendant’s visitation privileges at his home are conditioned upon the total exclusion of his lover or any other homosexuals during such visitation periods; and it is further
“[11] ordered and adjudged that defendant’s visitation privileges not limited to his home are conditioned upon the total exclusion of his lover and any other homosexuals from any contact with defendant and child; and it is further
“[12] ordered and adjudged that during defendant’s periods of visitation the child will not be taken to any place where known homosexuals are present nor will defendant involve the child in any homosexual activities or publicity.”
We are all agreed that 8, awarding custody of the child to the mother, should be affirmed, and that 9 covering visitation, should also be affirmed. We are further agreed that 10 and 11 should be excised. Inasmuch as the parties live in the same building, albeit on different floors, the daughter must be fully conversant with the fact that her father has a live-in male lover, and that excluding the lover as a condition of visitation serves no real purpose other than as a punitive measure against the father.
The area in which we differ is with respect to 12, which I would affirm, and which the dissent would excise. The father having advertised in the Village Voice for a homosexual relationship, there can be no gainsaying, the fact that he may very well be involved in other homosexual activities. It is not proper to subject this child to that possibility.
It is one thing for a girl of this tender age to know of her father’s proclivities, and even to adjust to it, it is quite another thing to be part of it.
Understandably, the father’s position is supported by an amicus curiae brief from LAMBDA Legal Defense & Educational Fund. Strangely, it is also supported by the NOW (National Organization of Women) Legal Defense and Education Fund. *123While the similarity to the problem for lesbians detailed in Di Stefano v Di Stefano (60 AD2d 976),* may certainly arouse their interest, I doubt if the majority of NOW members would object to the provision in 12 above, which the dissent mistakenly would excise from the decree, that the father will not “involve the child in any homosexual activities or publicity.”
(concurring). I concur in the opinion of Justice Fein.
See, 2 Foster-Freed, Law and the Family § 29:15, at 714-715,1984 Cum Supp.