(dissenting). The issue dividing the court is a quite narrow one, and from a quite reasonable point of view may not merit the amount of concentrated attention that it has received.
We are all in agreement the trial court had an adequate basis for awarding custody to the plaintiff mother. We are also in agreement that in a number of respects the restrictions imposed on the defendant’s right to visitation were not justified. The single issue that divides us is whether there is adequate basis for that part of decretal paragraph 12 which directed that during defendant’s periods of visitation the defendant will not “involve the child in any homosexual activities or publicity”.
It of course goes without saying that a small child should not be involved in sexual activities or publicity of any character, homosexual or heterosexual. We are unable to discern from the record a basis for the assumption that the defendant would expose his child to such inappropriate activities sufficient to justify such a direction. We acknowledge that it was poor judgment for defendant to advertise for a male companion during the last stages of his cohabitation with plaintiff as husband and wife, leaving the apartment phone number as one to be called. *124This questionable action must be measured against the record as a whole, which is convincing that the defendant is an intelligent, responsible person, devoted to his child, who would not expose her to inappropriate, destructive behavior. The same, of course, is equally true of the plaintiff wife.
We appreciate that the issue before this court is not whether as Trial Judges we would have imposed such a restriction, but rather whether the determination of the trial court is so clearly erroneous as to justify our striking the trial court’s order. From this perspective the issue may well be seen as a close one. Nevertheless, given the central reality that we are considering an issue between two worthwhile, responsible, moral people, one of them a homosexual and the other a heterosexual, the unpleasant connotation inherent in the special restriction on one and not on the other seems to us sufficient to justify our deleting this particular restriction precisely as we have all agreed to strike the other restrictions.
Kupferman, J. P., and Kassal, J., concur with Fein, J.; Kupferman, J. P., and Kassal, J., also concur in separate opinions; Sandler and Carro, JJ., dissent in an opinion by Sandler, J.
Judgment, Supreme Court, New York County, entered on April 7, 1983, modified, on the law and the facts, and in the exercise of discretion, to strike therefrom decretal paragraphs 10 and 11, and to modify decretal paragraph 12 to read as follows: “ordered and adjudged that during defendant’s periods of visitation the child will not be involved in any homosexual activities or publicity,” and the judgment is otherwise affirmed, without costs and without disbursements.