Huneke v. Huneke

¶1dissents and votes to reverse in the following memorandum. Yesawich, Jr., J. (dissenting). I respectfully dissent. Since the parties’ separation in 1977, their son, David, has remained with respondent mother. He resided with her at the former family residence until September, 1981 when he began attending the Hillside School, a private boarding school in Marlborough, Massachusetts. Respondent enrolled David at Hillside in a genuine and well-advised attempt to improve his flagging educational performance. Although David had average or above-average scores on aptitude tests, his performance in public school was woefully inadequate because of his tendency to become easily distracted. Respondent conferred with David’s teachers at length about his learning problems. They recommended he be placed in a learning environment which provided more individualized attention. After examining several alternatives, respondent concluded that Hillside would best meet David’s needs; her efforts also yielded a substantial scholarship which helped to defray much of the cost of this education. During his two years at Hillside, David has shown dramatic academic improvement as evidenced by the fact that his grades for the most recent marking period are of honors caliber. Petitioner contended that David’s enrollment at Hillside was grounds for a custodial change because it interfered with the development of a *686meaningful father-son relationship, caused the child to undergo psychological turmoil as the result of being separated from both parents, and constituted an attempt by respondent to deny petitioner access to his son. Petitioner maintained that David would be better off living in a familial setting with him, his second wife — whom he had married in February, 1982 after cohabiting with her for two and one-half years — and her 12-year-old son by a previous marriage. In support of his position, petitioner offered psychologists’ reports stating that the separation brought about by David’s attendance at Hillside was detrimental to the child’s emotional development. In my view, a custody change is unwarranted. I agree with the recommendation made by the court-appointed Law Guardian that David’s academic improvement has been such that it is now possible for him to return to school in and about Schoharie County; limiting the geographic area of school attendance in this fashion will not only ensure that petitioner has regular, substantial visitation with David, but will also ease the emotional distress of separation from both parents. There are a number of reasons for retaining custody in respondent. Her fervid concern for her son’s educational growth contrasts sharply with petitioner’s attitude. Although two years prior to the change in schools respondent had asked for his support in resolving their son’s learning problems, petitioner never even attempted to contact David’s public school teachers concerning his son’s development. He was apparently content to let respondent deal with the issue which she did in a responsible fashion. Notwithstanding that the initial custody arrangement was arrived at without prejudice to petitioner’s rights in any subsequent Family Court custody proceeding, respondent’s capable and caring upbringing of David from 1977 to the present simply cannot be ignored. Surely petitioner’s remarriage, in and of itself, is not such an overriding circumstance as to deprive the single parent of custody. There are several potential problems with bringing David into petitioner’s new family. A teacher testified that David was tormented by his father’s relationship with the new Mrs. Huneke. There is also evidence that the 12-year-old son of petitioner’s second wife had an adverse influence upon David’s schoolwork and ability to concentrate. In addition, petitioner acknowledged that his wife’s parents would be the persons primarily responsible for caring for David while he and his wife were at work. These circumstances indicate to me.that David’s best interests lie in remaining with his mother, whom the Family Court found to be a fit parent and whose ability to care for David is unassailable (see Labow v Labow, 59 NY2d 956, affg 86 AD2d 336). Aside from some disputes over specific visitation dates, nothing in the record suggests a concerted effort by respondent to thwart petitioner’s visitation rights. Indeed, even while David was attending Hillside, petitioner had regular visitation with the boy during vacations and frequent recesses. Accordingly, I would grant custody to respondent on condition that David be enrolled in a public or private day school located in Schoharie County or a county adjacent thereto.