Calder v. Woolverton

¶1dissents and votes to modify the judgment by denying both the petition and the cross motion, with the following memorandum, in which Cohalan, J., concurs: The joint custody arrangement, as provided for in the separation agreement, should not be disturbed. The behavior and attitudes of the parties, much of which is to be deplored, have not been of such nature as to constitute a forfeiture by either parent of the agreed-upon custody arrangements as set forth in the separation agreement. The expressed choice of the then 1314-year-old child would be more significant if it were necessary to determine whether she must remain with one parent or the other. That is not the issue. The objective circumstances in this case have made peculiarly fitting the alternation of custody in three-month periods; it had worked well for more than 10 years. The subjective factors, important as they are, have caused no emotional damage to the child, who is indeed fortunate to be the recipient of loving care from her parents and stepparents. Matters which loom large in the mind of a 13-year-old girl, and which may have played an important part in her stated choice of the parent with whom she desires to live, may seem less important as she matures, and "The subjective changes in the children or the objective changes in the family relationships should not be followed automatically by changes in custody” (Dintruff v McGreevy, 34 NY2d 887, 888). The prior decisions of the three sons to live with their father are not relevant except that such decisions, per se, may have had a "me too” effect upon this young girl, who has a great deal of respect for her brothers and a loving relationship with them. The record clearly shows that the mother’s relations with her only daughter and youngest child are far different from her relations with her sons. The mother has indeed been a loving parent to her daughter. The resentments expressed by the latter are not atypical of the growing pains of a young teenage girl. They clearly are within the realm of normality. It is to be noted that the child is scheduled to attend boarding school in the fall of 1975. This fact would, in any event, require modification of the alternate custody periods, but this should be done in the spirit of equal custody rights when she is not at school.