dissenting.
I dissent from the court’s judgment because I find the record on this appeal to be absolutely devoid of evidence that there has been any adverse effect on this three-year-old child flowing from the mother’s admitted status of sharing her and her child’s home with a married man. I note that the mother’s lover moved out of the home some three months prior to the hearing, and there were no definite plans for his return. It is clear to me from reading the transcript of the evidence and of the oral comments of the trial judge, that he was so aghast at evidence of adultery that he failed to exercise any discretion in weighing the factors related to the child’s welfare, and *709automatically ruled against the adulterous mother. I fear this court has done the same in reflex-type action.
The trial judge admitted that "the father lacks a little drive and he lacks a force of personality and has a poor work history.” Indeed, the father’s mother, with whom he lives at the age of 29, referred to her son’s work history throughout his life, once as "odd jobs,” again as "odds and ends,” and finally again as "odd jobs.” He testified his maximum income is apt to be $70 per week and the longest he has held any job is seven months.
The mother, on the other hand, has worked steadily for years as a legal secretary; maintains the child in the home into which he was born; and has him cared for during her working hours by a woman who has cared for him since he was eight months old and loves him as her own. The mother is involved in many church activities in which the child also participates; her religion is evidently important to her. The trial judge wondered aloud how the mother could claim any religion when she was an adulteress. I do not understand Jesus Christ himself to have been so demanding.
The court’s affirmance of this judgment amounts to the establishment of a per se rule: A custodial parent becomes per se an unfit parent if he or she acquires a live-in lover, even though absolutely no adverse effect on the child is shown. I reject such a rule.