On appeal from Superior Court, Chancery Division, Gloucester County.
Halpern, Ard and Antell. The opinion of the court was delivered by Antell, J.A.D. Halpern, P.J.A.D. (concurring). Ard, J.A.D. (dissenting).
Defendant (former wife) was awarded a divorce for sexual cruelty by judgment dated September 11, 1969 after a six-year marriage from which two children were born, Franceen, (fictitious name) on June 8, 1964 and Joy (fictitious name) on July 15, 1968. She received custody of the daughters, and until the determination before us for review they have always resided with their mother, a period of about seven years after the divorce.
On May 20, 1975 the Chancery Division ordered defendant to show cause why custody of the children should not be transferred to plaintiff on the ground that defendant "is an unfit mother." The order was signed on plaintiff's application, his first since the judgment of divorce. After a number of hearings, the last of which was on January 22, 1976, the trial judge, by letter opinion dated August 30, 1976, awarded custody to the father, directing that the "provision for custody shall take effect immediately and shall be explained at length in my opinion to follow as soon as possible." The
judge's oral opinion was delivered September 23, 1977 and his order, transferring custody and granting defendant rights of visitation, was filed on October 3, 1977. We have not been told of any valid reason for the lengthy delays in the foregoing sequence of procedural events. Our concern is that this unexplained delay on the trial judge's part should not be the basis for denying defendant relief if she is otherwise entitled thereto. Defendant appeals on the ground that the trial judge erred in modifying the judgment and divesting her of custody.
Central to this appeal is the fact that defendant is an admitted practicing homosexual. She argues that the action below was taken because of this fact alone and is therefore not legally sustainable. Plaintiff expressly disavows any claim that defendant is an unfit mother by reason of her homosexuality. He concedes that her right to custody of the children cannot be denied, limited or restricted on the basis of her sexual orientation alone -- a proposition with which we are in accord. In re J.S. & C. , 129 N.J. Super. 486, 489 (Ch. Div. 1974), aff'd 142 N.J. Super. 499 (App. Div. 1976).*fn1 Furthermore, compatibly with the uncontradicted
expert testimony, plaintiff disclaims being concerned with "any threat that the childrens' sexual development will be in any way altered by the fact that defendant is a homosexual." Rather, he relies for affirmance exclusively upon a claim of changed circumstances since the date of the original custody award such that the best interests of the children dictate modification of that determination.
At the outset it is noted that the trial judge made no finding, nor in any way concerned himself with the issue, of changed circumstances.
The evidence discloses that from the beginning this marriage was afflicted by sexual discord. Although the record is burdened with detailed testimony in which each party blames the other for their disastrous relationship, much is irrelevant except to demonstrate that at least from the time of their separation in 1967 plaintiff has been aware of defendant's homosexual propensities. As he knew when they separated, defendant was involved in an affair with another woman (Barbara), one which continued through and beyond the date of the divorce.
After the divorce defendant moved into a small apartment and plaintiff exercised weekly visitation rights with respect to the older daughter, Franceen, but refused to acknowledge Joy as his child. He persisted in this refusal, failing even to visit her when she was hospitalized, until adjudicated the father and ordered to pay for her support. It was as a result of defendant's persuasion that he eventually included Joy in his visits.
On October 14, 1970 defendant voluntarily admitted herself to Ancora State Hospital to be treated for a depressive neurosis. Plaintiff made no attempt to obtain custody at
that time, and the daughters were cared for by defendant's parents. After defendant left the hospital on December 17, 1970 she and the girls lived with her parents until the summer of 1974. During this time defendant worked full-time and attended counseling sessions.
In the fall of 1974 Joy developed emotional problems that impaired her learning abilities*fn2 and defendant reduced her work to a part-time basis. She observed Joy's work in school, met frequently with her teachers, met with the school psychologist and helped with remediating Joy's motor coordination skills. The child was also enrolled in a county guidance center where mother and daughter attended sessions together, and Joy was thereafter returned to regular classes.
The evidence shows that defendant has been equally concerned with the needs of Franceen.
In late 1974, upon the advice of school officials, defendant and the girls left the household where they had been residing. For three months thereafter they resided with "Joyce," defendant's lesbian companion. This arrangement was unworkable, however, since Joyce lived in a school district different from where defendant's daughters were enrolled. Therefore, in the interests of her children defendant returned to her parents' home. During the foregoing period defendant and Joyce slept apart and the children had their own room.
No specific findings were made in connection therewith, but the record is uncontradicted that defendant is an attentive mother who fed and dressed her children well, provided them with medical and dental care, and arranged for surgery, allergy tests and orthodonture. She has done all that can be expected of a dutiful mother.
Although he determined to alter the custody arrangement, the trial judge found that defendant was "a very warm, loving mother," that she "cares for her children and generally
within her means, at least at a level deemed minimally adequate, has provided for them." Recognizing, however, that plaintiff was "equally concerned" with the children, the judge decided to "examine into the question of homosexuality as a disqualifying effect on a parent."
The trial judge apparently weighed against defendant the fact that she was caught up "in an attempt to find her own identity and to deal with the problems" arising from her sexual status. However, he did not explain what problems he had in mind or in what way her problems or her quest for identity were different from those of most ordinary people; more importantly, he made no attempt to articulate a relationship between any of this and the welfare of the children. The judge also noted that defendant's ongoing liaison with her lesbian companion had "materially upset the older child and will have a slight influence in all probability, from the credible evidence, on the younger child." On an earlier occasion the judge had ordered that defendant not share Joyce's company at any time when the children were present, and this order has not been violated. Furthermore, there is nothing in the record to show any nexus between defendant's sexual companionship and the older girl's reaction.
Nowhere do we find documented in the record any specific instances of sexual misconduct by defendant or evidence that she tried in any way to inculcate the girls with her sexual attitudes. To the contrary, the evidence is affirmatively to the effect that she never displayed any sexual behavior in the presence of her children, and that she refrains from any demonstration of affection toward other women when the girls are present. Moreover, she is not a member of any homosexual organization. As we said in De Vita v. De Vita , 145 N.J. Super. 120 (App. Div. 1976):
When dealing with custody the burden of proof required to show that a mother is guilty of gross sexual misconduct to the detriment of her children is a heavy one. [at 124]
It is well settled that the best interests of the child are of primary concern to the court in any matter involving the custody of minor children. Fantony v. Fantony , 21 N.J. 525, 536 (1956). Since the conditions which would satisfy the best interests of a child during all of its minority cannot be conclusively determined in a single decree, custody orders are always held to be modifiable upon a showing of changed circumstances that would affect the welfare of the child. Borys v. Borys , 76 N.J. 103, 111 (1978); Mimkon v. Ford , 66 N.J. 426, 438 (1975). The party seeking the modification bears the burden of showing sufficient changed circumstances so as to require modification. Sheehan v. Sheehan , 51 N.J. Super. 276, 287 (App. Div.), certif. den. 28 N.J. 147 (1958); 24 Am. Jur. 2d, Divorce and Separation , § 819 (1966); 27B C.J.S. Divorce § 317(2)(b) (1959).
In assessing a claim of changed circumstances deference is given to the length and stability of the existing custody relationship. S.M. v. S.J. , 143 N.J. Super. 379, 385 (Ch. Div. 1976). The potential for damage which resides in removing a child from its psychological parent has been recognized in a number of cases. In In re P, and wife , 114 N.J. Super. 584, 592-93, 595 (App. Div. 1971), we held that although neither set of parents was obviously better fit than the other, the best interests of the child mandated that custody remain with the psychological foster parents, rather than the biological parents. Also see Hoy v. Willis , 165 N.J. Super. 265, 277 (App. Div. 1978); Kattermann v. DiPiazza , 151 N.J. Super. 209, 213-214 (App. Div. 1977); In re Adoption of Child by R.D. , 127 N.J. Super. 311, 315-16 (App. Div.), certif. den. 65 N.J. 292 (1974); Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973). So important is this factor that our Supreme Court pointedly stated in Sorentino v. Family & Children's Soc. of Elizabeth , 72 N.J. 127 (1976), that one seeking to change the child's custodial status quo
Not only did plaintiff offer no proof to meet this formidable burden, but, as we noted earlier, the trial judge made no findings which pointed to a change of circumstances. The only conclusion to be drawn is, as defendant claims, that the custody order was modified for the sole reason that she is a homosexual and without regard to the welfare of the children. This conclusion gains added support from our further analysis of the record and the determinations before us for review.
In awarding custody to plaintiff the trial judge did so on the reasoning that plaintiff
However, absent from the record is any factual basis for the judge's belief that the father's home is more stable than defendant's or that he is "financially secure and is able to provide the children with the best type of care, custody, maintenance * * *." Actually, at the time of the hearing plaintiff was in arrears on his child support obligations in the amount of almost $5,000, a fact which has caused defendant to apply for welfare assistance. When asked by the trial judge why he had not been making the payments, he explained only, "I imagine it is a combination of things," and stated that support would be "easier having the children with you."*fn3 As to his sincerity of purpose in seeking custody, we note again that plaintiff initially denied that he was Joy's father,
and in the course of the judicial proceedings which followed he admittedly testified falsely in denying that he had had sexual relations with defendant during certain critical times. The inference is at least reasonable that if defendant had not brought proceedings in aid of execution to compel plaintiff to meet his support obligations, plaintiff's custody application would not have been made.
Nor are we shown any factual support for the trial judge's evident belief that the children are being harmed or are likely to be harmed by continued custody with defendant. Rova Farms Resort v. Investors Ins. Co. , 65 N.J. 474, 483-84 (1974). The only findings offered for this purpose are that defendant's homosexuality has "affected" Franceen; that it has "materially upset" her, and that it "will have a slight influence in all probability" on Joy. Against this the report of Dr. Yaskin, the psychiatrist appointed by the court at the recommendation of plaintiff's attorney, concludes that the younger child, Joy,
Reporting on Franceen he comments that she is "rather well poised" and "that she has no ongoing emotional or behavioral problems." Further,
[T]here is no question that she loves her mother. She states, without hesitation, that her mother has always shown an adequate concern re the nutrition and their dress. She also states her mother has always been kind to her and has never abused her. She adds, "I know she loves me." I asked her if there was anything in her ongoing relationship with her mother that she objected to and she answers, "No -- mother is a good person."
Dr. Yaskin took account of Franceen's expressed desire to live with her father, but concluded that her reasons were "puerile," i.e. , that she ...