Court of Appeals of New York

Braiman v. Braiman, 44 N.Y.2d 584, 407 N.Y.S.2d 449 (N.Y., 1978)

407 N.Y.S.2d 449 44 N.Y.2d 584, 378 N.E.2d 1019 Arthur W. BRAIMAN, Appellant, v. Sharon BRAIMAN, Respondent. Court of Appeals of New York. June 8, 1978.

[44 N.Y.2d 585] Norman Bard, Brooklyn, findings of the courts below. Consequently a Anthony M. Barraco, Milton and Sandra new hearing is required. Krevitsky, Brooklyn, for appellant. Petitioner father, a successful lawyer, [44 N.Y.2d 586] Joan Goldberg, New York married respondent in 1967. The eldest of their City, for respondent. three children, a daughter, was born to the mother before she met petitioner, but was later OPINION OF THE COURT adopted by him. Although he initially sought custody of his adopted daughter, the father did BREITEL, Chief Judge. not appeal from Special Term's award of her In a proceeding, described as one to modify custody to the mother. Hence, only custody of a judgment of [44 N.Y.2d 587] divorce obtained the parties' two young sons remains contested. by the husband, petitioner father seeks custody The preliminary facts are not disputed. of his two sons, now aged six and seven-and-a- Upon the marital breakdown in late 1974, half. Until this proceeding, respondent mother custody of the three children was, under a had custody under a separation agreement which separation agreement, given to the mother. That survived a judgment of divorce. Special Term, agreement survived a judgment of divorce Supreme Court, awarded custody to the father, entered in favor of the father in January, 1975. It but a unanimous Appellate Division reversed, was not until April, 1976, when the father, who and awarded custody to the parents jointly. The had since remarried, learned that his former wife father appeals. was contemplating leaving the jurisdiction, that At issue is whether the custody of children this proceeding for change of custody based on of tender years may be entrusted, jointly, to the mother's alleged unfitness was begun. parents persistently and severely embattled.

The order of the Appellate Division, Page 450 Insofar as appealed from, should be reversed, and a new hearing held with utmost expedition. Pending a hearing at Special Term, the sons Entrusting the custody of young children to their were temporarily placed with their father. parents jointly, especially where the shared responsibility and control includes alternating The picture that developed is a mass of physical custody, is insupportable when parents hopelessly conflicting unpleasant cross- are severely antagonistic and embattled. On the accusations. [378 N.E.2d 1020] Petitioner views two-year-old hearing record before this court, himself as a devoted and responsible father. In plagued as it is with hopelessly conflicting the former wife's eyes, however, he is a gambler, testimony on vital facts and issues, it would be an unethical person, and an inattentive[44 improvident to choose between the contradictory N.Y.2d 588] and physically abusive father. The mother, who remarried shortly after this

- 1 - Braiman v. Braiman, 44 N.Y.2d 584, 407 N.Y.S.2d 449 (N.Y., 1978) proceeding was brought, describes herself as a circumstances, especially with respect to fitness homebody. In contrast, the father, buttressed by (see Matter of Ebert v. Ebert, 38 N.Y.2d 700, witnesses, characterizes her as a promiscuous 703, 382 N.Y.S.2d 472, 474, 346 N.E.2d 240, barfly who, while entertaining a series of 242). Custody was awarded to the parents paramours in the children's home, neglected the jointly, the sons to spend weekdays with the children. mother and weekends with the father.

An extensive investigation by the County To date, the order of the Appellate Division Department of Probation was inconclusive. having been [44 N.Y.2d 589] stayed, the sons Noting the number of vital contradictions, the remain with the father. Despite court order to the probation officer made no recommendation for contrary, he has not permitted the mother custody of the sons. She concluded only that visitation. For reasons unrevealed by the record, both parents seemed to love and be genuinely the whereabouts of the mother are now concerned with the children, and that, due to the undisclosed. mother's contemplated relocation, the father would probably supply a more stable Under section 240 of the Domestic environment. Relations Law, neither parent has a "prima facie right" to custody. Instead, the court is to "give The eight-day hearing before Special Term, such direction * * * as, in the court's discretion, which included testimony of physicians, justice requires, having regard to the psychiatrists, teachers, and neighbors, was circumstances of the case and of the respective similarly fraught with contradictions. The parties and to the best interests of the child". It is testimony of the medical experts provides but from this language that the authority to entrust one example among many. The father's experts custody of a child to both parents "jointly" has testified that in April, 1976, when change of been inferred (see, e. g., Dodd v. Dodd, 93 custody was first sought, the then four year old Misc.2d ---, ---, 403 N.Y.S.2d 401, ---; Perotti v. was badly bruised and the then five year old was Perotti, 78 Misc.2d 131, 132, 355 N.Y.S.2d 68, suffering from a nervous skin disorder. One 69). physician even filed a report of child abuse. The boys' pediatrician, on the other hand, stated that "Joint", or, as it is sometimes called he had never seen signs of child abuse and that "divided", custody reposes in both parents a the five year old's rash could not have been shared responsibility for and control of a child's caused by anxiety. The authorities, moreover, upbringing (see Bodenheimer, Progress Under ultimately determined that the child abuse report the Uniform Child Custody Jurisdiction Act and was unfounded. Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 There is more. The father's alleged physical Cal.L.Rev. 978, 1009-1010; compare 1 Lindey, abuse of the children, his asserted delinquency Separation Agreements in support payments, the mother's purported neglect of the home, and her alleged promiscuous consorting with intermittent paramours are but four of numerous areas in Page 451 which the testimony is flatly contradicted. and Ante-Nuptial Contracts (rev. ed.), pp. 14-60 Concluding that the sons fared poorly with to 14-61; see, generally, "Split", "Divided", or their mother, Special Term, in an elaborated "Alternate" Custody of Children, Ann., 92 opinion, awarded their custody to the father. The A.L.R.2d 695). It may or may not include an Appellate Division, in an even more elaborate arrangement for alternating physical custody writing, reversed, expressly crediting the (compare Schack v. Schack, N.Y.L.J., Aug. 21, testimony in favor of the mother and citing the 1974, p. 15, col. 8, p. 17, col. 1, with Perotti v. rule that modification of a custody agreement [378 N.E.2d 1021] Perotti, 78 Misc.2d 131, 134, reached by the parties requires a change in 355 N.Y.S.2d 68, 72, Supra ).

- 2 - Braiman v. Braiman, 44 N.Y.2d 584, 407 N.Y.S.2d 449 (N.Y., 1978)

On the wisdom of joint custody the That the mother's whereabouts are authorities are divided (see Dodd v. Dodd, 93 undisclosed, and that she is admittedly desirous Misc.2d ---, ---, 403 N.Y.S.2d 401, ---, Supra, of moving out of the jurisdiction, suggests still for a collection of authorities and an analysis of further complications. The physical custody competing concerns; Bodenheimer, pp. 1009- arrangement ordered by the Appellate Division 1010). Of course, other considerations contemplates reasonable geographical notwithstanding, children are entitled to the proximity. Under the instant circumstances, love, companionship, and concern of both alternating physical custody is, even as a matter parents. So, too, a joint award affords the of logistics alone, unrealistic. otherwise noncustodial parent psychological support which can be translated into a healthy That the joint custody may not stand, environment for the child. however, does not resolve the issue. This court, even if it were possible on the hopelessly But, that there is no perfect solution to the conflicted record, does not make new findings of divided family does not mean that the court fact. Instead, the court reviews the record and should not recognize the division in fact of the chooses only between the findings of the courts family. Children need a home base. Particularly below. (See CPLR 5501, subd. (b); 7 Weinstein- where alternating physical custody is directed, Korn-Miller, N.Y.Civ.Prac., par. 5501.16.) The such custody could, and would generally, further conflicts and contradictions in this record, the insecurity and resultant pain frequently however, are so severe and so go to the heart of experienced by the young victims of shattered the matter that it is impossible to resolve them families (see Foster & Freed, Law and the without assessments of credibility. Either or Family New York, § 29:6A (1978 Supp.)). both of the parents with their retinues of contradictory lay and expert witnesses have It is understandable, therefore, that joint presented such extremes of proof that further custody is encouraged primarily as a voluntary inquiry in depth is required to resolve the issues. alternative for relatively stable, [44 N.Y.2d 590] While litigation rarely provides issues of fact amicable parents behaving in mature civilized free from serious contradiction, the state of this fashion (see, e. g., Dodd v. Dodd, 93 Misc.2d particular record makes resolution, at this stage, ---, ---, 403 N.Y.S.2d 401, ---, Supra ; hopeless. Bodenheimer, pp. 1010-1011). As a court- ordered arrangement imposed upon already An added difficulty is that two years have embattled and embittered parents, accusing one elapsed since the hearing at Special Term. another of serious vices and wrongs, it can only During that period, the boys have lived with enhance familial chaos. their father; they have been prevented from seeing [44 N.Y.2d 591] their mother; and the More than four years since their separation, mother has evidently found it necessary to the parents are evidently still unable to manage conceal her whereabouts. their common problems with their children, let alone trust each other. Instead, they continue to find fault and accuse. They have failed to work out between themselves even a limited visitation Page 452 with the children. To expect them to exercise the responsibility entailed in sharing their children's However imperative it otherwise would be physical custody at this time seems beyond for this court to end the proceeding, in light of rational hope. It would, moreover, take more all that has occurred and the critical than reasonable self-restraint to shield the inconsistencies in the record, a new but children, as they go from house to house, from expedited hearing is required. Both Special the ill feelings, hatred, and disrespect each Term and the Appellate Division in deciding and parent harbors towards the other. writing upon this case detailed their reasons. Read together the opinions dramatically reflect the sharp contradictions between the proof

- 3 - Braiman v. Braiman, 44 N.Y.2d 584, 407 N.Y.S.2d 449 (N.Y., 1978) presented by the parties. Read separately, each There are no painless solutions. In the rare supports the conclusion[378 N.E.2d 1022] case, joint custody may approximate the former reached because each emphasizes the testimony family relationships more closely than other of the separate retinues of witnesses. On custodial arrangements. It may not, however, be appellate review, the present record is incapable indiscriminately substituted for an award of sole of sustaining a plausible resolution. custody to one parent. Divorce dissolves the family as well as the marriage, a reality that may Of course, whatever the ultimate not be ignored. In this case the gross conflict disposition, it must be, as it has always been, in between the parents is so embittered and so the best interest of the children (see, e. g., involved with emotion and litigation that Domestic Relations Law, § 240; Finlay v. between them joint custody is perhaps a Finlay, 240 N.Y. 429, 433-434, 148 N.E. 624, Solomonic approach, that is, one to be 626 (Cardozo, J.)). Yet, at this point on this threatened but never carried out. At least, that is record, it is impossible to discern where those what the present record shows. A new record interests lie. Even the undoubtedly objective may offer a better, if still imperfect, solution. probation officer could make no recommendation for the sons. The trial court, Accordingly, the order of the Appellate therefore, may wish to consider appointing a Division, insofar as appealed from, should be qualified guardian ad litem for the children, who reversed, without costs, and a new hearing would be charged with the responsibility of ordered. Pending such hearing the custody of the close investigation and exploration of the truth children should remain as provided by Special on the issues and perhaps even of Term of Supreme Court in its order of July 6, recommending by way of report alternative 1976. resolutions for the court to consider (see CPLR 1202; cf. Barry E. v. Ingraham, 43 N.Y.2d 87, [44 N.Y.2d 592] JASEN, GABRIELLI, 95, 400 N.Y.S.2d 772, 777, 371 N.E.2d 492, JONES, WACHTLER, FUCHSBERG and 496). COOKE, JJ., concur. Order, insofar as appealed from, reversed, etc.