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Palermo v. Palermo

Decided: December 14, 1978.

JOSEPH PALERMO, PLAINTIFF-APPELLANT,
v.
CYNTHIA PALERMO, DEFENDANT-RESPONDENT



On appeal from Superior Court, Chancery Division, Camden County.

Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.

Horn

In this case plaintiff, the natural father of a 12-year-old girl, appeals from a judgment awarding custody of the child to defendant stepmother.

The following facts are uncontroverted. Angelina Palermo, the child, was born March 16, 1966 to plaintiff and his then wife, Laurel Ann Palermo. On October 7, 1969 Laurel Ann died while still married to but separated from plaintiff. The child had been in her natural mother's custody

at all times until the latter's death. After the demise of Laurel Ann plaintiff decided to permit Angelina to remain with her maternal grandparents, with whom she and her mother had lived after the separation.

Angelina remained with her maternal grandparents for about two years, during which time plaintiff sent her toys and clothing and often visited her on weekends. Following the marriage of plaintiff to defendant Cynthia Palermo (now Cynthia Wetherall) on October 30, 1971, the child moved back with her father and his new wife. On January 21, 1973 the parties separated and plaintiff moved in with his parents for about six months and then moved to another address where he worked. In October 1974 he took up residence in an apartment in Glassboro. In the meantime Angelina continued to reside with defendant. As indicated, defendant has since remarried and Angelina resides with defendant and her husband.

The child has always done well at school and seems to enjoy her teachers. She appears to be well adjusted and professes equal love for her father and her stepmother. However, at an in camera interview with the trial judge she expressed her preference to live with her stepmother and to visit her father on weekends.

The trial judge found that both parties were "emotionally fit" to raise Angelina. Each was able to furnish a satisfactory dwelling unit for the child. Each was able to provide for her economic well-being. Nonetheless, he granted custody to defendant because he determined that such custody was in the best interests of the child because of

Plaintiff asserts that the trial judge erred in applying an incorrect legal standard in his determination -- awarding custody to defendant, who has no blood ties with the child, as against plaintiff, her natural father -- in view of the aforementioned findings that plaintiff was a fit person and was otherwise capable, emotionally and economically, to enjoy custody.

Plaintiff particularly asserts that

There is a rebuttable presumption favoring custody in the natural parent vs a stranger: and the only rebuttal is a finding that the custody in the natural parent will create a danger to the health, safety, morals, or welfare of the child.

In addition, he avers that the opinions expressed to the judge privately by Angelina are not controlling, since the ...


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