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FAMILY COURT OF NEW YORK, DUTCHESS COUNTY 1968.NY.42808 <>; 293 N.Y.S.2d 592; 57 Misc. 2d 672 August 29, 1968 "JAMES VICTOR HARRIS",*FN* Garbarino, Klinger, Spencer & Hedberg (Edward K. Hedberg of counsel), for petitioner. Allan E. Rappleyea for respondent. Raymond E. Aldrich, Jr., J. Author: Aldrich

Raymond E. Aldrich, Jr., J.

Author: Aldrich

 "James Victor Harris", as petitioner, brought this proceeding against "Josephine Nancy Harris", his former wife, in the Supreme Court, pursuant to section 240 of the Domestic Relations Law, by order to show cause and petition, for custody of their three infant children if the wife persisted in her plans to remove them from Dutchess County to the State of Illinois, and for an order continuing the visitation of petitioner with his children in Dutchess County. In response, the wife opposed the application, and requested that the court deny the petition. Upon the return date, determination of the matter was referred to this court pursuant to section 651 of the Family Court Act (Family Court Docket No. R-810-68).

The hearings consumed two days, both parties were ably represented by counsel, both testified, the court interviewed the children, the petitioner presented one witness, and the parents and children were examined by a psychiatrist and psychologist. The parties were married on April 17, 1954, and their three children, "Alice", "Karen" and "Paul" were born on June 20, 1955, January 17, 1957 and July 15, 1959 respectively. Marital difficulties occurred, causing the parties to be separated, evidenced by a separation agreement dated July 6, 1967. Paragraph 1 of the agreement stated: "each may reside at such place, or places, as he or she shall select. Each may, for his or her separate use, profit or benefit, conduct, carry on, and engage in any business or profession, or employment, which to him or her may seem desirable, or advisable, without any authority, control or direction from the other party." Paragraph 3 granted custody to the mother, subject to prescribed visitation rights of one weekend per month, three weeks each year, alternate Christmas days, and reasonable visitation rights after reasonable notice. Among the other provisions, the husband was to pay to the wife for support and maintenance of the children the sum of $21.66 per week per child until 18 years of age in the case of the boy and 21 years in the case of the girls, in addition to paying $25 a week to the wife as alimony until her death or remarriage.

Thereafter, on July 18, 1967 petitioner went to Mexico, and, upon respondent's appearing in the proceeding by an attorney, a decree of divorce was granted, which included a ratification and incorporation of their aforesaid separation agreement. Throughout the negotiations leading up to and including the separation agreement and subsequent divorce, the parties were represented by separate attorneys.

Some time during the early part of 1968, the exact date being in dispute, respondent averring the time was in February, she informed her husband that she had been accepted at Northwestern University for her doctorate in the school of speech, and that if she received a fellowship, she intended to move to Evanston, Illinois with the children. The wife was granted a $5,000 fellowship, and she has entered into a written contract for the sale of her home in Dutchess County with the title closing to be on or before September 1, 1968. Furthermore, she has rented an apartment in Evanston.

Petitioner pleads to permit her to take the children with her would deprive him of his visitation rights, their rights of visitation with him, and be contrary to their welfare and best interests by subjecting them to strange, unfamiliar surroundings and associations.

Family Court in this instance seeks as sole consideration, what are the best interests of these children, and what will best promote their welfare and happiness (Domestic Relations Law, § 240). This principle has always been the guidance of courts (Finlay v. Finlay, 240 N. Y. 429; Matter of Rich v. Kaminsky, 254 App. Div. 6). In the solution of the problem of custody, the interests of the children must be the paramount consideration (Lester v. Lester, 178 App. Div. 205, affd. 222 N. Y. 546; Shakun v. Shakun, 11 A.D.2d 724).

The Mexican divorce decree obtained by the parties will not necessarily be controlling on this court, for my duty is to determine custody solely on the basis of the welfare of the minors. (Matter of Bachman v. Mejias, 1 N.Y.2d 575.) Furthermore, neither is the separation agreement determinative of the disposition to be made of custody. This court is charged with the duty to do what is necessarily in the best interests of the children, mindful of their welfare and health, and without being restricted by an agreement made by adults and to which the children were not parties. (Matter of Hicks v. Bridges, 2 A.D.2d 335; People ex rel. Rowe v. Rowe, 11 A.D.2d 759.)

There is no absolute rule to aid the court in determining which of these parents, now opposing each other, is more entitled to the custody of the children. Truly, neither party has a prima facie right to the custody of the children and such is even confirmed by the statute. (Domestic Relations Law, § 240.)

The evidence indicates that the husband knew in 1963 or 1964 that his wife wanted to secure her doctorate degree. He testified he knew it in "my heart even before then". He admitted such a degree would be security for her, she could then arrange for patients at her home, and secure a better employment position on more favorable terms. He stated to the court that he believed his wife was truthful and honest, and that her purpose in going to Evanston was solely to obtain her doctorate degree at Northwestern, and further he thought it was a good thing for her to do until he learned the children were opposed to moving.

The respondent has a bachelor's and master's degree, and has been employed all her married life, except for interruptions for pregnancies, in the speech therapy field, and even before her marriage she was so involved. She is an assistant professor at State University College, New Paltz, and now seeks her doctorate degree, her major to be in language pathology. The only university in the country where she can secure such a degree is Northwestern, although Stanford is expected to initiate such a course this fall.

There is no question from the evidence that the wife's purpose in leaving for Northwestern is other than sincere and her sole objective a legitimate one to further her academic prominence. If she secures a doctorate, she will be immediately elevated to an associate professorship and thereupon command a salary of $4,000 to $5,000 a year more, and she most surely in the future would be elevated to a full professorship with even greater income and more favorable working conditions. Furthermore, she would be assured of tenure by her advanced degree. Such a situation most certainly would adhere to the benefit of the children and be to their best interest and welfare. The security the mother would have and the ability to demand more favorable employment conditions would permit her to be with the children more than at the present time and assure to them a greater opportunity to have the love, affection and attention of their mother.

The objection of the children to moving from their present surroundings is well understood by the court, and is a natural reaction of children who have not experienced any mobility of modern life. They are of tender years and uncertain by virtue of their immaturity, and their concern about moving, while childish, is appreciated. However, this court believes from observing them and analyzing the testimony and reports of the psychiatrist and psychologist that they will adapt to new surroundings, make new friends, and finally benefit from the academic advancement of their mother. Their immaturity prevents them from fully anticipating at this time the new experiences ahead of them. Surely the culture and mores of Evanston can scarcely be regarded as inferior to our own, or so substantially different as to be determinative of the issues here.

The child "Alice" has been enrolled at five different schools so far, so a further change and meeting of new schoolmates should be a procedure to which she can adjust, as she has in the past, without a traumatic shock, and "Karen" should she remain here, would be going into junior high school, ...

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