Calder v. Woolverton

— In a proceeding by the petitioner mother inter alia for an award of exclusive custody of her infant daughter and, in effect, to modify the provisions of a separation agreement which conferred joint custody, in which the defendant cross-moved for similar relief, petitioner appeals from a judgment of the Supreme Court, Nassau County, entered January 27, 1975, which, after a nonjury trial, inter alia (1) dismissed her petition, (2) granted defendant’s cross motion and (3) modified the separation agreement accordingly. Judgment affirmed, with costs. We agree with the trial court’s conclusion that the best interests of the 15-year-old child involved in this case will be served by giving her father full custody. This conclusion is supported by many factors, including the stable and harmonious family life which the child enjoys with her father, the prior decisions of each of her three brothers while infants (now all adults and, apparently, well-adjusted) to live with their father; the court-ordered psychiatric report which concluded, after examination of the several parties, including the daughter, that "there is no question that Celia’s [the daughter’s] interests would be best served if she were to remain with the [father]”; the trial court’s own observation of the parties; and, finally, the clear preference of the child to live with the father. We recognize that this last factor is not determinative (see Dintruff v McGreevy, 34 NY2d 887), but it obviously should be considered when, as here, the child is not of tender years. The Dintruff case (supra) is clearly distinguishable from this one not simply because there the children were only 13 and 8 years of age, but because there the award of custody to the father ended eight years of custody with the mother. The court, in Dintruff, warned that subjective changes in the children or objective changes in the family relationships should not be followed automatically by changes in custody, because "The rearing of a child requires greater stability than a roller-coaster treatment of custody” (supra, p 888). In contrast, here, the child’s custody was being exchanged every three months. We feel the present award, which also provides liberal visitation rights for the mother, will now supply rather than hinder the required stability.