M.A.B. v. R.B

510 N.Y.S.2d 960 (1986)

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Nature of the Case

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Facts

H and W were married in 1970, separated in 1978 and divorced in 1984. There are three infant issue of the marriage, B., born November 27, 1973, J., born February 22, 1976, and T., born July 2, 1977. The judgment of divorce incorporated the parties' stipulation which included the provision of joint custody of their three children but that the children were to reside with W permanently in the State of New York. In general, the parties have followed this custodial arrangement. There was a five-month period between February and June 1985, when B. resided with H. In May 1978, H revealed to W that he was a homosexual. Thereafter, the parties had a trial separation during which period they sought marital counseling. Ultimately the defendant indicated that he 'could not in good conscience return' to their home and since 1978 has chosen to live with a male partner. W has had a history of severe health problems which she testified caused her to be hospitalized as an in-patient about 80 times in the past 10 years. These frequent hospitalizations have often resulted in the children being cared for by her parents, H or his parents. In camera, B stated his strong desire to remain with his mother expressing embarrassment and discomfort with the fact of his father's homosexuality. B. is a troubled young man. He has been suspended from school numbers of times in recent years for being a poor school citizen (i.e., mooning the class, leaving class without permission, giving the finger, causing class disturbances, fighting, cutting class and sticking a classmate with a compass point). B. did not pass any of his major seventh-grade courses this year, with the exception of a 'D' in one course and an 'A' in physical education. B. was also on a fast track for substance abuse by using alcohol at 10 and stealing money from W for marijuana purchases by his friends. It was suggested that B. move in with H but W objected to the live in male lover still being there, but W still allowed it. B.'s conduct and school work showed signs of improvement. After a confrontation between H and W about W's planned relocation to Florida, the mother refused to return B. to the father. Since June 1985, around the time this action was commenced, B. has been in the physical custody of his mother. B.'s problems grew worse with W. The court agreed with H and gave custody of B. to him.