M. P. v. S. P.

Ard, J. A. D.

(dissenting). I must respectfully dissent from the opinion of my colleagues. Following the trial in the Chancery Division, Judge Gruccio announced his findings, conclusions and determination in an articulate and detailed opinion. The thrust of this opinion, as it should be, was a determination of what is in the best interests of the children. I am fully persuaded as to the soundness of the conclusions of law, and satisfied that the findings of fact might reasonably have been reached on sufficient, credible evidence in the record, and I would not disturb them. State v. Johnson, 42 N. J. 146, 162 (1964).

This is a custody case. As we stated in DeVita v. DeVita, 146 N. J. Super. 120 (App. Div. 1976):

* * * In our review of an issue of custody the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal. Sheehan v. Sheehan, 51 N. J. Super. 276, 295 (App. Div. 1951). See also Schwartz v. Schwartz, 68 N. J. Super. 223 (App. Div. 1961). [at 323]

Given this standard of review, I would affirm substantially for the reasons set forth in Judge Gruecio’s opinion.

Defendant appears to predicate her appeal on an impassioned defense of the civil liberties of a homosexual mother. However admirable the goal, by so arguing, I earnestly suggest that she has misunderstood the only issue before the trial judge, i. e., the best interests of the children.

Further, our course is charted by a fixed standard of appellate inquiry. It can serve no useful purpose to quote allegations and counter-allegations from a bitterly disputed custody suit, or to isolate certain testimony in an effort to *444lend support to a given conclusion. Our limited purpose here is to review the holding of the trial judge and determine whether his findings are supported by the record. However, by making their own factual finding, and by drawing “reasonable inferences” therefrom, the majority impermissibly usurps the function of the trial judge who was faced with a balancing of but two choices, custody in favor of plaintiff or custody in favor of defendant. The fact that an appellate court might come to a different conclusion than that of the trial judge does not change our standard of review. The particular deference to be accorded a trial judge’s decision as it relates the issue of custody, and the rationale therefore, has recently been stated in Palermo v. Palermo, 164 N. J. Super. 492 (App. Div. 1978). There Judge Horn states:

In considering all the circumstances upon which the child’s best interests hinge, a trial court judge has the opportunity to become fully immersed in the details of the case, and his opinion will be given great weight on- appeal. The Appellate Division said in In re Flasch, 51 N. J. Super. 1 (1958), certif. den. 28 N. J. 35 (1958):
“The trial judge had the advantage of the personal appearance of the parties and of discussions with the children; additionally he had the wisdom which comes from an accretion of experience in dealing with such matters. Particularly in a case of this nature, is it true that general principles of law do not decide concrete cases, as has been aptly said. Bach matter must be decided on its own merits, with the best interests and welfare of the children as the paramount consideration. To this principle, even parental rights must yield, [at 18]” [164 N. J. Super, at 498]

In my opinion, the question before us is not the determination of a homosexual parent’s rights, but rather, giving the trial judge’s opinion the great weight it deserves, whether this judgment should be disturbed. I believe the trial judge made sufficient findings1 and his holding is supported by sufficient credible evidence in the record.

*445In addition, I take issue with several of the premises upon which the majority relies in reversing the trial judge’s determination. The majority cites In re J. S. & C., 129 N. J. Super. 486, 489 (Ch. Div. 1974), aff’d 142 N. J. Super. 499 (App. Div. 1976), for the proposition that defendant’s “right to custody of the children cannot be denied, limited or restricted on the basis of her sexual orientation alone, * * (majority opinion at 427) In fact, that case in no way supports the sweeping principle the majority espouses today.

First, the authority upon which the majority relies is out of context. The full quotation in the In re J. S. & C., supra, case is:

* * * Fundamental rights of parents may not bo denied, limited or restricted on the basis of sexual orientation, per se. The right of a parent, including- a homosexual parent,- to the companionship and care of his or her child, insofar as it is for the test interest of the child is a fundamental right protected by the First, Ninth and Fourteenth Amendments to the United States Constitution. That right may not be restricted without a showing that the parent’s activities may tend to impair the emotional or physical health of the child. =:-' * *- [129 N. J. Super, at 489; emphasis supplied.]

The court is explicit in its recognition that it is, after all, the best interests of the child with which we are concerned, and further, that this claimed “fundamental right” to custody may be denied if it is found that the “parent’s activities may tend to impair the emotional or physical health of *446the child. * * *” In short, the parental “right” to custody of a child does not have the absolute protection the majority gives it. Rather, “[i)t is a principle of long standing that in dealing with the custody and upbringing of an infant the welfare of the child is the controlling consideration. * * * Even parental rights must yield to this principle. * * *” In re Mrs. M., 74 N. J. Super. 178, 183 (App. Div. 1962); N. J. Div. of Youth & Family Sen. v. Huggins, 148 N. J. Super. 86, 92 (Cty. Ct. 1977), aff’d o.b. 160 N. J. Super. 159 (App. Div. 1978). Indeed, it has often been stated that the paramount consideration of the courts is for the “safety, happiness, physical, mental and moral welfare of the child. * *” Fantony v. Fantony, 21 N. J. 525, 536 (1956), emphasis supplied; In re J. S. & C., supra, 129 N. J. Super. at 493.

This preoccupation with the child’s mental and moral welfare, and the consequent limitations these may have on the parent’s “fundamental” rights, can be no better illustrated than in the In re J. S. & C. case. There, the mother of the children in question sought to limit the visitation rights of the father, an admitted homosexual. Conversely, the father sought unlimited visitation rights. The central issues, as framed by the trial court, were as follows:

(1) Whether the parental rights of visitation should be restricted on the basis that the father is a homosexual;
(2) Whether the granting of visitation rights to this homosexual father will serve the best interest of the children, and
(3) Whether the visitation rights of this homosexual father should he restricted. [129 N. J. Super, at 489]

In holding that the father’s visitation rights could, and must, be limited, the court states that:

* * * [A] parent’s right to raise his child as he sees fit is secondary to the State’s power to ensure the health and welfare of the child.
Although parents possess various rights such as custody and visitation these rights will fall in the face of evidence that their exercise *447will result in emotional or physical harm to a child or will be detrimental to the child’s welfare, fat 493]

Thus, the authority from which the majority springs in rendering its opinion, in actuality fully supports the course the trial judge below took in placing the children in the custody of their father.

I disagree with the position of the majority which finds fault with the trial judge’s total rejection of the expert testimony adduced by defendant. Unquestionably, the credibility of an expert and the weight or value to be accorded his testimony lies within the exclusive domain of the trier of fact. Middlesex Cty. v. Clearwater Village, Inc., 163 N. J. Super. 166, 173—174 (App. Div. 1978); Mohr v. B. F. Goodrich Rubber Co., 147 N. J. Super. 279, 284 (App. Div. 1977), certif. den. 74 A. J. 281 (1977); Savoia v. F. W. Woolworth Co., 88 N. J. Super. 153, 162 (App. Div. 1965); Angel v. Rand, Express Lines, Inc., 66 N. J. Super. 77, 85-86 (App. Div. 1961). Further, and more importantly for purposes of this case, the trial judge, as the factfinder, is not bound by this expert opinion. Though it may be helpful in the determination of a point in issue, “just as a jury, a judge may adopt cso much of it as appears sound, reject all of it, or adopt all of it.’ * * Middlesex Cty. v. Clearwater Village, Inc. supra, 163 N. J. Super. at 174, citation omitted. See also, Huddell v. Levin, 537 F. 2d 726, 736, n. 4 (3 Cir. 1976). As stated in Minnesota Mining & Mfg. Co. v. Berwick Indus., Inc., 532 F. 2d 330, 333 (3 Cir. 1976), “* * * it is axiomatic that the trier of fact is not bound to accept expert opinion, even if unconlradicted.” (Citations omitted; emphasis supplied). Thus, the fact that the trial judge here rejected defendant’s experts’ testimony gives no cogent reason for the majority’s concern since such action was clearly within the judge’s province. The fact that the majority comes to a different conclusion furnishes singularly insufficent grounds for reversing that determination.

*448Additionally, the majority expresses concern not only for ' the manner in which the vn camera interviews with the children were conducted but also with the weight the trial judge accorded the results of these discussions. For support of this proposition, State v. Green, 129 N. J. Super. 157 (App. Div.1974), is cited. Though Green does state that, in criminal cases, side-bar discussions must be recorded for purposes of a “meaningful review,” that holding has no applicability to the instant case.

N. J. S. A. 9:2-4 provides, in pertinent part, that:

* * * If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to his wishes in making an award of custody or modification thereof.

Several private interviews were conducted by the trial judge, out of the presence of the parties and their attorneys, in order to determine whether Franceen and Joy had any preference with whom they wished to live. The record reveals that the majority of these sessions were at least partially recorded. Additionally, it is apparent that the trial judge adequately relayed the results of these interviews to the parties on the record. Furthermore, there was no objection to the procedure.

In Lavene v. Lavene, 148 N. J. Super. 267 (App. Div. 1977), certif. den. 75 N. J. 28 (1977), we had occasion to comment on the aforementioned statute (N. J. S. A. 9:2-4). There it was categorically stated that a child’s desires or preferences on the issue of custody is:

* * * a factor which the court should consider along with all of the .other relevant factors. The age of the child certainly affects the quantum of weight that his or her preference should be accorded, but unless the trial judge expressly finds as a result of its interview either that the child lacks capacity to form an intelligent preference or that the child does not wish to express a preference, the child should be afforded the opportunity to make her views known. We would think that any child of school age, absent the express findings *449we have indicated, should have that opportunity and that the judge would be assisted thereby. Tat 271-272]

See also, Mayer v. Mayer, 150 N. J. Super. 556, 563 (Ch. Div. 1977); Annotation, “Child’s Wishes as Factor in Awarding Custody,” 4 A. L. R. 3d 1396 (1965).2

As to the manner in which an interview with the child is to he conducted, the court in Lavme states (148 N. J. Super, at 272) that that is a matter which “must be left to the trial judge’s discretion.” Though the court does remark, by way of footnote, (n. 1, at 272), that the “preferable procedure,” where “practicable,” may he to record the interview, that procedure is in no way mandated. The court states:

* * * A private interview out of the presence of the contesting parents and their attorneys may well be indicated in order to assure the child’s freedom of expression. But the need for privacy does not constitute a warrant for total secrecy. The trial judge is clearly obliged to disclose for the record his findings as to the capacity of the child to express a preference. If he has concluded that the child has capacity, he must then state whether such an expression of preference was made. If the judge relies to any degree at all oil the preference expressed, a matter which he must also state, then, of course, ho must make known, at least in general terms, his reasons for such reliance and the extent thereof. [Ihid.j footnote omitted]

This was precisely the procedure followed by' the trial judge, and thus there is no basis for the allegation that the defendant here may have been denied “an opportunity to be heard on the facts. * * *” Eranceen, age 11 at the time of the proceedings below, categorically stated to the trial *450judge on several occasions her absolute desire to live with her father, rather than stay with her mother. Surely, at such an age, her capacity to state such a predilection with certainty cannot be disputed. See Lavene v. Lavene, supra, 148 N. J. Super, at 274. This desire, as noted supra, was conveyed to the parties. It is also of some importance to note that her last interview with the trial judge was at the express request of defendant.

Joy, approximately 7 years of age at the time of the hearing, vacillated in voicing her preference. However, her choice, whatever it might be, must be discounted by her tender age and “capacity to reason,” as mandated by our statute. Furthermore, as noted by the majority, Joy developed emotional problems which impaired her learning abilities, which also tends to lessen the weight to be given her wishes.

However, the predilections of the children were by no means the only factors the trial judge took into account in determining changed circumstances and in rendering his decision placing the children in the custody of their father.

In her testimony defendant candidly admitted to her homosexuality and to several ongoing relationships. She further stated that she actively attended homosexual clubs and bars.3 Through her sexual preferences and activities defendant' has succeeded in alienating all of her own relatives (parents, aunts, etc.), some of whom affirmatively testified on behalf of plaintiff.

Further, the trial judge took into account the instability of defendant’s home due to her constant moves and attempts at “finding herself,” as opposed to a more stable atmosphere plaintiff could provide. The court noted Franceen’s expressed hatred of one of defendants companions, the fact that she is pressured by her peers and the material effect defendant’s *451relationships have had on Eranceen4 and the probability of the same result on Joy.

The record also reveals that as a resnlt of defendant’s relationships, the children were confronted with difficult and troublesome situations. Eor example, there was disputed testimony in the record which revealed that one of defendant’s companions struck one of the children, which resulted in strained relations between the two lovers. Also, Eranceen related to the trial judge an incident wherein the father of Diane, one of defendant’s friends, actually “started shooting” with a gun, presumably because of her living with defendant.

In its entirety, the record supports the determination of the trial judge. Contrary to defendant’s contention, it was not just the fact of defendant’s sexual deviancy that prompted the judge to rule as he did, but rather it was all of the facts of the case, taken as a whole, which justified the finding of changed circumstances and placing the children, in their own best interests, in the care and custody of their father.

Adults have freedom of choice; children do not have a like freedom. They are impressionable and vulnerable. Adolescence is a time of turmoil, self-doubt and sometimes alienation. It is a time when the stability of a family is most important. Children should not be victims of an avant-garde tolerance that does not represent the thinking of the vast majority of society. I cannot conceive that the interests of these children will he best served by returning them to the custody of their mother, who gave this answer to the court:

THE COURT: Would you be satisfied to have your daughter enter a homosexual relationship?
*452THE WITNESS: If that’s where she was comfortable, I wouldn’t be elated because of society’s rules.

In balancing the assets and liabilities oí the two households, Judge Gruccio determined that the interests of these children are best served by placing them in the custody of their father and his new family. I would affirm that determination.

I would also point out that if the majority is not satisfied that the trail judge made sufficient findings of fact to support his determination, the case should be remanded to the trial level to give *445the court an opportunity .to elucidate on its conclusions. See Lavene v. Lavene, 148 N. J. Super. 267 (App. Div. 1977), certif. den. 75 N. J. 28 (1977). Though I agree with the majority that this case has already been unfortunately protracted, 1 believe that a judgment as to who will receive custody of the children should not be based on an impersonal record, but should best be left to one who has “the advantage of the personal appearance of the parties and of discussions with the children” and has “the wisdom which comes from an accretion of experience in dealing with such matters.” In re Flasch, 51 N. J. Super. 1, 18 (App. Div. 1958), certif. den. 28 N. J. 35 (1958).

By erroneously relying on State v. Green, supra, the majority concludes that the express desires of the children should be totally ignored, in direct contravention of our statutes. Tot in the same breath the majority elevates “expert” testimony to a point where It supersedes the child’s fears, predilections and needs. By so doing, not only does the majority dispense with express statutory mandate but also with the proper scope of our inquiry, i. e., whether the trial judge’s determination was supported by the record.

In response to inquiries from the trial judge, the defendant testified that she attended private homosexual clubs with Joyce both in Philadelphia and in Atlantic City.

At one point in her testimony, defendant admitted Eranceen had nightmares concerning Barbara, one of defendant’s paramours. The defendant testified:

Question: Did Franceen ever indicate to you during any period of time that she was having certain nightmares regarding Barbara Guardella? Answer: Yes, she did