The order appealed from modified
the judgment of divorce obtained by the appellant wife by altering the custody provision of the judgment of divorce. It transferred the custody of the two infant children of the marriage, a boy, Scott, 10, and a daughter, Joyce, 6, from the mother to the father. The memorandum opinion of the trial court accompanying the order of transfer stated :
“ This Court is of the opinion that the promiscuous activities of the plaintiff mother are not in keeping with the best interests of the children. One of the witnesses on the trial was a married man who admitted socializing with the plaintiff mother, and it is evident to this Court that the relationship between the two was most intimate in and out of her apartment. Both children of the marriage seem to know this man quite well. There were also written articles and photographs of a prurient nature lying around the apartment exhibiting and indicating promiscuous and lascivious tastes on the part of the plaintiff, not only with her paramour but other coupled individuals. The record and exhibits indicate her desire to experiment sexually. It cannot be that the best interests and welfare of the two impressionable children of the marriage will be best served by awarding their custody ‘ to one who proclaims, and lives by, such extraordinary ideas of right conduct. ’ (Bunim v. Bunim, 298 N. Y. 391, 394.) This Court in arriving at its conclusion has considered not only the evidence adduced at the hearing, but also the contents of the Probation Department report that had been submitted to this Court, as well as the psychiatric evaluation report, both of which are made a part of this record and sealed.
‘ ‘ The evidence before this Court further indicates that the defendant father is presently keeping company with a woman whom he intends to marry and will maintain a proper and decorous home life for the children.”
The findings of the trial court that there “ were also written articles and photographs of a prurient nature lying around the apartment exhibiting and indicating promiscuous and *326lascivious tastes on the part of the plaintiff, not only with her paramour but with other coupled individuals ’ ’ find no support in either the testimony heard by the court or the Probation Department report or the psychic evaluation report. The sole evidence as to written articles of a prurient nature in the apartment is that the father found a copy of Screw magazine on the dresser in the mother’s bedroom and another copy on an upper shelf of the kitchen closet well out of the reach of the children. The photographs of a prurient nature described by the trial court as “ lying around the apartment ” were not in plain view. The only testimony with regard to the photographs comes from the father, who said: “ Then I sat down at the dining room table to look at-—they had News day there and I was just leaning against the vase—she had some flowers—there was an envelope with a picture sticking out of it a little bit that said ‘ Post Office Box ’ so and so occupant New York City and I don’t know what made me look at it—it was just being I saw a photograph I thought maybe it was someone in the family or something, someone I knew, so I took a look inside the envelope and I saw a picture of a nude couple with a letter attached.”
He then 11 looked a little bit further ” and found “ a couple more letters and some were closed and some were open.” He looked in the ones that were open and found additional letters and pictures. The following Saturday he found the letters still there and there were others in the kitchen on the refrigerator and in the kitchen closet on a shelf six feet above the floor. There is no evidence, or even a claim, that the publications or pictures or letter contents were ever seen ]by the children.
There is nothing in the record or in the Probation Department or psychiatric reports to sustain the trial court’s finding of ‘1 promiscuous and lascivious tastes on the part of the plaintiff, not only with her paramour but other coupled individuals ” which “indicate her desire to experiment sexually”. Nor is there any testimony or other material in the record to sustain the trial court’s characterization of the mother as “ one who proclaims, and lives by, such extraordinary ideas of right conduct ”, unless one infers that having two copies of a magazine such as Screw in one’s apartment and advertising in that magazine and speaking to and . meeting some of those who respond to such an advertisement sustain such findings. Interest in, and even fascination with, such aspects of sex hardly establish a desire to experiment sexually or a pattern of gratifying promiscuous and lascivious tastes practiced with “ other coupled individuals ”.
*327What an examination of the record and the psychiatric reports seems to demonstrate is that they reflect the feeling of revulsion felt by most people, including professionally trained persons, upon seeing or reading about publications such as Screw and learning that some person has indicated an interest in the sexual practices promoted and praised in such a publication. This feeling may well be intensified if the person showing such an interest is a woman. Thus, Dr. ¡Joseph Shapiro, the author of the psychiatric evaluations of the parties to this action, in his letters to the trial court stated: “ Mr. Feldman’s original appointment had to be changed to a later one on the same day that I saw Mrs. Feldman. Mr. Feldman appeared at my office at 9:45 A.M. to leave a large brown manila envelope containing several copies of ‘ Screw Magazine ’ and several letters with attached photos of nude couples apparently in response to an advertisement alleged to have been placed in the above mentioned magazine by Mrs. Feldman. Had I not had this information I might not have reached the conclusions stated in the enclosed reports ” (emphasis supplied).
In his summary Doctor Shapiro speculates: ‘ ‘ With respect to Mrs. Feldman one cannot help but wonder why, if it is true, would Mrs. Feldman leave a copy of ‘ Screw Magazine ’ on the dining room table where it was easily discovered by Mr. Feldman. * * * Is Mrs. Feldman consciously or pre-consciously hoping to lose custody of her children so as to be free to indulge herself in her sexual pursuits. Certainly the pornographic materials found by Mr. Feldman almost impels one to consider such possibility.” But the fact is that there is no basis in the testimony of Mr. Feldman for any claim that Mrs. Feldman ever left a copy of Screw magazine on the dining room table. Therefore the psychiatrist’s compulsion to consider the possibility that Mrs. Feldman wished to be freed of her children in order to “indulge herself in her sexual pursuits” is based on a supposition that is contrary to the facts in the record.
The reports of the psychiatrist further reflect the tremendous weight he gave to the fact that Mr. Feldman had found several copies of Screiv magazine in Mrs. Feldman’s home. The doctor mentions it twice in his report on the father, Philip Feldman, once when he quotes him as expressing the opinion that his former wife was a bisexual individual based on “ his recent discoveries of his wife’s interest in hard-core pornography” and a second time when he says, ‘ ‘ He impressed me as being sincere when he talked of his concern for his children’s well being, expecially [sic] since he discovered his wife’s apparent *328interest in hard-core pornography. ’ ’ On the other hand, in the report on Philip, the psychiatrist brushes off Philip’s infidelity (promiscuity [?]) during his marriage with the sentence, “He did admit that during the marriage * * * he had been involved in several extra-marital affairs ”.
In contrast, he concludes about Mrs. Feldman: “ She impressed me as suffering from judgmental defect as exemplified by her reasons for bringing hard-core pornography into her home, her efforts to contact other people interested in a variety of sexual encounters and her seeming disregard of the possible unwanted impact such pornographic material could have on her children were they to accidentally stumble upon this material ” (emphasis supplied). He concludes that the foregoing “judgmental defect ” and her “ thinly veiled ” hostility toward her husband and the history of an unhappy adolescence suggest ‘ * chronic undifferentiated schizophrenia, which at present appears to be in a state of partial remission.”
He says in his summary: “ If Mr. Feldman marries this other woman and [if\ she is willing to accept into the new family constellation the Feldman children and to give them a reasonable amount of maternal interest and care, I would be inclined to view Mr. Feldman as the more desireaible [sic] parent to receive custody of his children at the present time ” (emphasis and bracketed word supplied). He reaches this remarkable conclusion even though he has no knowledge of the character of the other woman.
The tendency to impose on a woman a standard with respect to sexual interests different from that applied to a man is clearly reflected in the opinion of the trial court. He said, “ One of the witnesses * * * was a married man who admitted socializing with the plaintiff mother, and it is evident to this Court that the relationship between the two was most intimate * * #. Both children of the marriage seem to know this man quite well.” The inclusion of this comment in the trial court’s opinion contrasts with the following views he expressed during the cross-examination of the father:
“ Q. Mr. Feldman, you have never witnessed Mrs. Feldman engage in any act of sex with any other individual from the time you were divorced from her in this very court until the present, is that correct?
the court : Just a minute. How is that relevant ?
mb. todowitz : He has made accusations in his petition, Tour Honor.
the court : That what?
*329mb. yodowitz : That she has engaged in various acts of sexual conduct and numerous —
the court: That is not the gravamen of this. 1 am not interested in that.
mr. yodowitz : As long as we understand, very good.
the court : I am interested in a more promiscuous setup.
mb. yodowitz : I am confused. I must admit, Your Honor.
the court : I mean the very fact that two people are divorced and either one or the other engages in conduct resulting in intercourse with another I don’t see how that standing by itself has anything to do with the custody of the children.”
The complete acceptance by the trial court of the father’s announcement of his intention to be married (according to the father’s brief on this appeal, “within a month”) and his finding that the father “will maintain a proper and decorous home life for the children” flies in the face of the probation report which notes: ‘1 After he has had the kids for several months, he and she [a divorcee he has been dating for the last three years] will look for an apartment or a house. No date has been set for a wedding because ‘ a lot depends on the money situation. Barbara’s husband ran off and left her. He is in Florida but she gets no support from him ’ ”.
The home visit report in the probation report indicates that the father intends to share his bedroom in his parents’ apartment with the children, they sharing a high riser bed, he sleeping in his single bed, during a temporary period of adjustment on the part of the children, 1 ‘ before he finalizes his plans, hopefully within six months ”, which include “ remarriage to a young lady that is presently known to the children, as well as the purchase of a new home ’ ’.
The conclusion in the Probation Department report on this point is: “ He talks of marrying again; however, this appears quite indefinite and at this point, it would be his mother who would assume the mothering role if the children were placed in his custody.” The trial court utterly failed to refer to this conclusion; nor did it apparently note the sentence in the report that ‘ ‘ it was only when we brought up the question of other women that he affirmed that he had been unfaithful during his marriage and his wife had known. ’ ’
As Justice Benjamin’s opinion notes, the evidence establishes that the children were well provided for emotionally and physically by the mother and the probation report clearly indicates that on a visit to the children the probation officer observed no discomfort on their part toward their mother, and that they *330appeared quite comfortable and responsive to her. The home visit report states that her “ apartment was very clean and it appeared that Mrs. Feldman was a good homemaker as well as housekeeper.” The school reports with the probation report state, “ Scott get [sic] along well with teachers and peers. He is outgoing in class and cooperative,” and that Joyce “ seems to be well adjusted.”
In view of the foregoing, I believe that the trial court committed grave error in ordering the children, who had been with their mother from the time they were born, turned over to their father. First, the evidence in no way sustains the findings of the trial court. Bather it reflects the application of a discriminatory sexual standard based on the mother’s evincing an interest in pornography and sexual freedom, in dating regularly, and having an intimate relationship with a married man who has no present intention of divorcing his wife. Secondly, the decision contradicts the trial court’s statement made during the trial that a divorced person, male or female, has a right to engage in intercourse with another without affecting his or her right to custody of their children. The court’s statement during the trial was a correct statement of the law, for there is a constitutional right of privacy spelled out (see Griswold v. Connecticut, 381 U. S. 479), not only with respect to social, legal and economic associations but also with respect to sexual association (see, also, Stanley v. Georgia, 394 U. S. 557).
I can find nothing in the record which shows any conduct on the appellant’s part, as opposed to fearful conjecture, which poses such a danger to the continued welfare of her children if left in her custody as to overcome the inference that arose from the award of custody of the children to her in the decree which granted her a divorce based on her husband’s cruel and inhuman treatment of her and his having been unfaithful to her during his marriage. Her having relations with a married man with whom she has gone out for three years and who is known to her children as her boy friend and (according to the probation report) to whom the children “ did not seem particularly negative ”, whom Joyce likes and of whom Scott says, “ He is okay”, does not, as Justice Benjamin states in his opinion, present ipso facto a sufficient basis for denying the mother continued custody (see. cases cited in that opinion and also Christian v. Randall, 516 P. 2d 132 [Col. Ct. of App., 1973]).
For the foregoing reasons, I concur in the modification of the order appealed from as indicated in the opinion by Justice Benjamin.